Cases by Issue - Supreme Court Jurisdiction from State Courts

Jinks v. Richland County - Oral Argument

Fri, 09 Jan 2009 14:50:36 +0000

Case:

Jinks v. Richland County

Media File:

02-258_20030305-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert S. Peck

Chief Justice Rehnquist: We'll hear argument next in No. 02-258, Susan Jinks v. Richland County.

Mr. Peck.

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

In enacting section 1367, Congress took up this Court's invitation in Finley to manage the boundaries of supplemental jurisdiction.

It had two goals in doing so.

It sought to provide a Federal forum for the plaintiffs that so chose to use it, and for... for reasons of respect for the interests of comity and federalism, it provided a mechanism by which those cases may be returned to State court.

They knew that there was a dilemma, a dilemma caused by the operation of statutes of limitations, and so they sought to find and found a simple, practical, workable solution that traveled down a well-trod path.

It's a path that was traveled down by the Soldier and Sailors' Relief Act, a act that also tolls State statutes of limitations even when exigent circumstances do not exist.

And in the case in 1993 holding that, Conroy, this Court found that it was applicable in that instance to a defendant who was a town.

It also traveled down that road in section 108 of the Bankruptcy Act.

This too provides that kind of 30-day window after dismissal of the automatic stay or lifting of the automatic stay for a plaintiff to file an action which is otherwise purely a State matter in State court.

This Court found in Stewart v. Kahn that there is no federalism bar to congressional authority as long as that authority exists someplace in the Constitution.

Throughout its history, pursuant to Article I, which has a cognate provision duplicative of the authority it derives also from Article III, Congress has used its jurisdiction-setting authority as a traffic cop over the area of concurrent State and Federal jurisdiction.

It has done so almost from the beginning in the Anti-Injunction Act, the removal statute, and has always found this to be a necessary incident of maintaining a dual-court system.

Justice Stevens: Well, the Anti-Injunction Act just applies to Federal courts, doesn't it?

Mr. Peck: The... it gives Federal courts the authority, though, to stay a State action when it interferes with the jurisdiction of the Federal court.

Chief Justice Rehnquist: It's an... that... that's an exception to the Anti-Injunction Act.

Mr. Peck: That's an exception contained in the Anti-Injunction Act, and another exception is when an act of Congress so provides.

The choice of tolling did not attempt to give longer life in State court than it would have enjoyed in Federal court.

It did not eliminate defenses that were available in Federal court, have the matter remain there.

It did not change the State's policy on waiver of municipal liability or alter its statute of limitations.

It simply said that the case, as it stood in Federal court, is now available to be heard in State court.

The State is free to change both its waiver of immunity, its statute of limitations, and Congress accepts those changes regardless of the application of the supplemental jurisdiction statute.

Once that jurisdiction attaches, once the Federal court has authority to hear the State action, then even after the Federal... Federal claim has fallen away, the court still has the jurisdiction to hear what otherwise would have been a purely State claim.

This is unusual in a diversity case.

When complete diversity is broken, the jurisdiction ends.

But here no one, not the Supreme Court of South Carolina, not the respondents, not the amici, questioned Congress' authority to say that this remains a Federal matter because a Federal interest has attached because the matter has now been heard.

Justice Ginsburg: I didn't understand it that way, but South Carolina said, Federal court, you want to take this and deal with this stale claim?

That's all right with us.

It's one of the ironies of the case that the State's position is the Federal court can have it if you keep it.

The only thing they can't do is give it back to us when we don't want it because that would be commandeering the use of our courts.

South Carolina's position is the Federal court can keep our State claim in Federal court.

Indeed, it must if it wants the claim to remain alive.

Mr. Peck: That... that is correct, and even at this late date, rule 60(b) would enable a plaintiff like Susan Jinks to seek to reopen that Federal case, to... to reconsider its judgment and allow this case to still live if... if the tolling provision is ineffective.

So here what we're saying is that there's a continuing Federal interest in this matter.

There's... there's been a Federal attachment to what otherwise would have been a purely State matter.

In a removal situation, for example, South Carolina could not refuse a remand and we contend that that authority which is contained in the removal statute is the same kind of authority that Congress is exercising here because what Congress has effectively done is define the legal effect of the appearance of this matter in Federal court and the Federal disposition of it.

And the State courts of South Carolina or any other State is not equipped, it's not authorized to refuse that definition because Congress is the supreme sovereign of Federal law.

So--

Justice Souter: We... we know what Congress has... has... has defined.

Why is it important?

I mean, what is the... how would you define the important interest to the Federal courts in... in our seeing the constitutional issue your way?

Mr. Peck: --Well, first of all, Congress wanted to provide this Federal forum.

They clearly had the authority to do that.

But they also wanted to take in the interest of comity which this Court has always referred to as a vital consideration.

Justice Souter: The State says, we don't want this kind of comity.

Keep it.

Mr. Peck: It's... it's very nice for the State to have that interest, but the federalist design of our Constitution provides that impetus that Congress was acting on.

Justice Souter: No, but I... I want to get down to specifically what's important to the Federal courts and to Congress.

Mr. Peck: Well--

Justice Souter: Why would it hurt the Federal courts if you lose this case?

What's... practically what's... what's at stake?

Mr. Peck: --I... I think there are... there are several things that might happen.

Right now what we call supplemental jurisdiction is a doctrine of discretion.

It would be turned into a doctrine of plaintiffs' rights, that if the State courts are refusing to receive these case... cases, then the Federal courts will be obligated to hear these State matters even if they were novel and complex matters in which only the State courts have the appropriate expertise to hear it.

And I think that would cause some problems.

Justice Ginsburg: What difference does complexity make if the State Federal court's position is we don't want to clutter up Federal courts with a lot of State tort... garden variety, simple State tort claims?

We don't want to be a fender bender court.

Mr. Peck: And I think it is perfectly legitimate in Congress' jurisdiction-setting authority for them to make that determination.

These are matters that are--

Justice Ginsburg: The... the idea is that Federal courts should be occupied with Federal cases and not with State cases.

Mr. Peck: --And I... I think that is an appropriate... appropriate reason for Congress to adopt this kind of a statute to assure that that happens.

The other... Justice Souter, the other possible consequence is that plaintiffs, fearful that a Federal court will not hear their matter, will not take it back if the... the State courts will not accept the matter, may be left without a cause of action on their State claim, that they will suddenly be shut out the door.

And in order to--

Justice Souter: And how is that going to hurt the Federal courts?

Mr. Peck: --That does not necessarily hurt the Federal courts, but Congress certainly has a right to be concerned for those litigants and try to--

Justice Souter: Why... why isn't the person to be concerned for those litigants the State courts under whose law the litigants want to sue?

Mr. Peck: --Because... because, Justice Souter, here the State courts have... have... Congress has basically done one thing.

They've... they've looked at the idea of comity that this Court had talked about in Guaranty Trust, in Ragan, and... and what they said is that comity is a reciprocal process.

It's got to have a two-way street.

And so what we're doing is we're not giving longer life in Federal court to what's in State court.

We have the authority to assign to the State courts a matter that is purely Federal in nature.

Now we have a matter that has a Federal interest because of the intervention of its arrival in Federal court, and because of that, we have enough authority also to say that this is a matter that the State courts can't refuse.

They can't suddenly say that we do not recognize the authority here--

Justice Stevens: But comity is traditionally a matter of consent rather than having one sovereign impress its... its law on the other.

I mean, it's consensual.

Mr. Peck: --It is consensual, but then again, the... the idea behind comity is tied up with our... our federalism and our idea that we have a dual court system.

That dual court system recognizes that there will be conflicts.

There will be some... some difficulties between the Federal and State systems.

Those difficulties is what Congress is trying to police.

It's a... it's a function that they have performed repeatedly, and the removal statute is a very good example of that.

And certainly Congress could insist... could insist that the State courts receive back even a matter that the Federal court erroneously dismissed rather than remand it.

And here they're not asking the South Carolina courts to do anything that they don't normally do.

If a... a matter is--

Justice Stevens: Well, they're asking the South Carolina courts to grant relief in a case that is outside the statute of limitations.

I take it they don't... the South Carolina courts don't normally do that.

Mr. Peck: --South Carolina courts, as... as we cited in the... the Hilton Head and Moriarty decisions, has said that they will sometimes waive the statute of limitations in the interest of justice.

Another instance in which they waive that issue is when venue has been misapplied.

When... when they demand that venue be placed in one particular place, you file in that wrong place, the statute of limitations expires before that court acts on it, they say it has jurisdiction to transfer it to the proper venue.

Justice Stevens: Well, would this case come out differently in the State?

Supposing Georgia, a neighboring State, had no such waiver.

Would this case come out differently there?

Mr. Peck: I don't think so, and the reason I don't think so is because when all that is left in the Federal court is a matter that is otherwise a State-based claim, that Federal court sits as just another court of that jurisdiction, another court within that State's system.

And for that reason... for that reason, it ought to be treated, when Congress so authorizes... and Congress, exercising that Article III, that necessary and proper powers that it had, utilizing the Supremacy Clause, authorizes that this be treated essentially by tolling as meeting the statute of limitations.

They have the right to define the meaning of what the Federal law is here, and that is simply what they've done.

They've done it by adopting a tolling provision that is not unlike other tolling provisions throughout the law.

And here it's clear that they... they've done something that they have the authority to do.

Tolling comports completely with the federalist design of the Constitution, enables the court's consideration of what court is best positioned to adjudicate.

That is decidedly a jurisdictional decision.

Here... and it's... and it... it is doing that by allowing the courts to control their own borders of what is appropriate to them and what is not.

Justice Ginsburg: I thought the South Carolina Supreme Court agreed that as far as the Federal courts are concerned, this is all fine.

So it was necessary to spare the Federal courts having to sit on a case that no longer has a Federal element.

That's fine.

It serves a legitimate Federal purpose.

But, says South Carolina, you can't... it isn't proper to tell us then... they can dump it.

That's fine.

They can't tell us that we have to pick it up.

Mr. Peck: That is indeed what they've said.

But Stewart v. Kahn says otherwise.

Justice Ginsburg: That was a... that was a Civil War tolling of the statute of limitations.

Mr. Peck: That is correct.

It found that within the war power, Congress had the authority to toll the statute of limitations in a State action brought in State court.

Obviously then there is no Tenth Amendment overlay that prevents the use of that war powers authority.

Here they have similar authority, both in Article I, section 8, to establish the inferior courts, as well as Article III where there's a cognate phrase, and that authority has to be equivalent.

They've used that authority also with respect to bankruptcy, again deriving from section 8.

And so here again there's no question that these other tolling provisions have been properly used.

No one has questioned their constitutionality in recent times, and this simply adopts a longstanding congressional approach to this issue.

It's one that this Court has previously approved.

If... if the respondent has his way, enormous mischief will result.

You leave the courts with a Hobbesian choice, a choice that they have been uncomfortable with in which you've seen courts granting motions for reconsideration, courts requiring waivers of a statute of limitations, so having much the same effect... and clearly when tolling does that, it is clearly appropriate to the judicial power... and in other instances, simply holding onto a case they would otherwise allow the State courts to do, again in the interest of the federalist overlay--

Justice Ginsburg: Well... well, isn't it... if... suppose you should not prevail here.

Well, then you just bring... the plaintiff would bring two actions, bring... bring a protective action in the State court within the statute of limitations and then that would solve the problem, wouldn't it?

Mr. Peck: --But that... that's an unworkable solution.

Congress sought to avoid that.

Congress wanted to give a Federal forum capable of hearing all matters that a plaintiff would expect a single court to hear.

And by filing a protective action of that sort, first of all, you could not stop the State court from continuing to proceed, possibly eclipsing in speed the Federal court and coming up with res judicata on their Federal claim, as well as the fact that you may be signaling the Federal court that on the State matter we have a preference to be in State court when that really isn't the case.

I... I would... if there are no further questions, I would like to reserve the rest of my time.

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: Very well, Mr. Peck.

Mr. Lamken, we'll hear from you.

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

The tolling provision at issue here is within Congress' constitutional powers for two reasons.

First, it establishes the legal effect of a distinctly Federal set of events: the filing, pendency, and dismissal of an action in Federal court over a defendant over whom the court can exercise jurisdiction.

Second, it serves legitimate Federal interests, ensuring that if plaintiffs are held harmless for having selected a Federal forum in the first instance and ensuring that Federal courts are not required to exercise jurisdiction and decide cases that involve potentially sensitive issues of State law that are more reliably and more appropriately decided in the State court.

Because municipalities are not States or arms of the States, sovereign immunity does not prevent them from being hailed into Federal court and it doesn't prevent the Federal courts from exercising jurisdiction over cases against them, including supplemental State law claims.

Congress can establish the rules for when Federal courts should hear such claims and the rules for when they should not.

Congress has corresponding authority to establish reasonable rules about the legal consequences of the pendency of the Federal action, of the filing of the claim, its pendency, and the court's decision to dismiss it under specified rules that Congress itself has established.

The rule established here falls within the tradition of Federal control over the effect of Federal proceedings.

It falls in the tradition of, for example, legal effect of the filing of a bankruptcy petition which stays all the actions that are against the debtor and tolls the State limitations periods during the pendency of the automatic stay.

Or the removal provision which takes cases out of State courts, stays the proceedings in State courts, and thus prevents the State courts from proceeding in a way such as by deeming the case constructively dismissed that might have the effect of causing the statute of limitations to continue to run.

And the effect of a Federal... a judgment of a Federal court case.

All these are matters that are controlled by Federal law, and that Federal law is no less binding on State courts adjudicating State causes of action, including against municipalities, than they are on Federal courts.

The rule in this case serves twin Federal interests.

First, it holds plaintiffs harmless for having selected a forum... a State... excuse me... a Federal rather than a State forum in the first instance.

Absent this sort of rule, plaintiffs would face the risk, if they chose a Federal forum, of having the statute of limitations run on their State law claims.

If the Federal court then chose to dismiss, those State law claims would be barred.

And plaintiffs would have an artificial incentive to avoid Federal court, including for the assertion of their Federal law claims.

It also serves the interests of Federal courts in ensuring that they don't have to decide State law claims that are potentially sensitive, that under the standards this Court articulated in Gibbs that Congress has codified in section 1367(c) and it reflects sensible notions of division between State and Federal authority more appropriately belong in State court and can be more reliably adjudicated there.

This Court's decision in Stewart v. Kahn establishes that there is no constitutional impediment to congressional preemption of State tolling rules if it serves a legitimate Federal interest, the tolling provision here, like the social... excuse me... like the Soldiers' and Sailors' Relief Act, the bankruptcy automatic stay tolling rule, following that tradition.

Finally, the tolling rule here intrudes only modestly on State interests.

The timely filing of the State claims in Federal court serves all of the statute of limitations purposes as the claim... as the timely filing of those same claims in State court.

Accordingly, we ask that the judgment of the State supreme court be reversed.

If there are no further questions.

Argument of Andrew F. Lindemann

Chief Justice Rehnquist: Thank you, Mr. Lamken.

Mr. Lindemann, we'll hear from you.

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

By enacting section 1367(d), Congress has intruded on principles of State sovereignty.

This case involves more than just the tolling of a State law statute of limitations.

It involves, in this particular instance where a political subdivision is involved and South Carolina law is involved, specifically the South Carolina Tort Claims Act... this case involves a... a waiver of State law sovereign immunity, State law governmental immunity.

Justice O'Connor: What about examples cited by the representative of the Solicitor General of the Soldiers' and Sailors' Civil Relief Act and other Federal laws that have a similar effect on South Carolina and other States?

Mr. Lindemann: Well, I would submit to the Court that, first of all, the issue has never come up, never been litigated in this Court, and as far as I'm aware, has never been litigated in any court whether or not the Soldiers' and Sailors' Act in any application is... is constitutional.

Justice O'Connor: Okay.

So you think, as far as you're concerned, it would be the same problem and the same result.

Mr. Lindemann: No, I do not necessarily believe it will be the same result.

I believe it would be a much more difficult question for this Court than what was facing the South Carolina Supreme Court and is presently before this Court.

Unknown Speaker: Why?

Mr. Lindemann: Because you have different Federal interests that are involved.

And obviously, in determining whether or not the... a statute is proper under the Necessary and Proper Clause and to do a Tenth Amendment analysis, you have to look at... you have to weigh the various Federal and State interests that are involved.

In this particular case, which I'll elaborate more momentarily, you have very superficial, I would submit, Federal interests involved compared to a very substantial State interest of determining whether or not the State and its political subdivisions are subject to suit under State law.

Justice Stevens: But is it not... is it not correct... is it not correct that the intrusion on State sovereignty... forget the Federal side of the balance for a moment... the intrusion on State sovereignty is precisely the same under all these other statutes?

Mr. Lindemann: I would disagree, Justice Stevens.

Justice Stevens: Why is the intrusion in the Soldiers' and Sailors' Civil Relief Act any different than this one?

Mr. Lindemann: The Soldiers' and Sailors' Act... it would be a very similar intrusion on the... on the State sovereignty.

Justice Stevens: And how about the bankruptcy statute?

Mr. Lindemann: The bankruptcy... the actual... any... any of these statutes that have been cited by the petitioners and by the Government that actually provide for a stay of a State court action I think are substantially different because I would submit to the Court that a stay of a State court action, whether it's pursuant to the Bankruptcy Code, pursuant to the removal statutes, any of... Anti-Injunction Act, any of those does not have the same effect upon State sovereignty because it's not changing the actual liability of the defendant, in this particular case, Richland--

Justice Stevens: Well, neither does this statute change the liability.

It just preserves the cause of action.

Mr. Lindemann: --I--

Justice Stevens: Just like the Soldiers' and Sailors' statute.

Mr. Lindemann: --I... I would respectfully disagree, Justice Stevens, because what has occurred in this particular case is Richland County was entitled to State law sovereign immunity once 2 years passed from the date of the loss.

And at... at the point that this lawsuit was filed in State court--

Justice Stevens: Wouldn't it be entitled to sovereign immunity if a sailor had... had sued them too?

Mr. Lindemann: --Well, that's why I was trying to distinguish the stay cases from the Soldiers' and Sailors' Act.

I think the Soldiers' and Sailors' Act issue is a much closer question and there what you're weighing is much more substantial Federal interests.

Justice Stevens: I'm... I'm just looking at it from the State's point of view in the point of my questions.

It did not seem to me that the State interest in it being immune was any different in any of those situations.

Mr. Lindemann: Well, I would... I would submit that there is no difference in the Soldiers' and Sailors' context, but there would be a major difference in any of the situations involving a stay.

Justice Scalia: Mr. Lindemann, I don't... I don't see what difference it makes that the statute of limitations in this case was applied to... to what you call State sovereign immunity.

That is, you... you acknowledge that this entity, Richmond... Richland County, was... was not entitled to sovereign immunity as we know it under Federal law.

Mr. Lindemann: That's correct, Your Honor.

Justice Scalia: But you're saying that the State wished to confer upon Richland County a shorter statute of limitations for suit against it than... than this Federal statute permits.

Why is that any... any different from applying the same statute against South Carolina's determination that a private individual should not be suable after 2 years?

What difference does it make whether... whether the person being affected by it is a private individual or Richland County?

So long as it's not the State of South Carolina, Federal sovereign immunity law is not... is not at issue.

What do we care?

Mr. Lindemann: Well this, Your Honor, is not a case involving the Eleventh Amendment.

Justice Scalia: Exactly.

Mr. Lindemann: This is not a case that is involving Federal constitutional immunity.

Justice Scalia: Exactly.

Mr. Lindemann: This is a case that was brought... a negligence case that was brought in State court against a State governmental... or a local governmental entity in the State of South Carolina to which South Carolina law should apply.

And the reason why we contend that this violates the Tenth Amendment is it intrudes into the areas of State sovereignty to determine, number one, what South Carolina law provides; number two, how South Carolina law determines whether or not their own governmental entities are subject to suit.

Justice Ginsburg: But, Mr. Lindemann, one of the curiosities about this case is if the Federal court, once the Federal claim dropped out, decided that it would clean... clean up the operation, it would keep it in Federal court, there would be a Federal court adjudicating South Carolina's State law case.

The only regulating rules would be State rules.

And South Carolina says, that's okay with us.

They can take our law into the Federal court and apply it there and... but we don't want it back.

In other words, we want to force our cases to be litigated into... in the Federal court.

And that doesn't make a whole lot of sense.

Mr. Lindemann: Well, it's not as much that they're trying to force the Federal court to litigate the case.

Obviously, the plaintiff chose that forum to start with.

And Congress has deemed... has provided for supplemental jurisdiction.

So obviously Congress has provided a forum in Federal court for the litigation of these State law claims.

And so South Carolina has not said, you can't give it back to us, but what South Carolina had said is that in the interim, if there's a dismissal without prejudice of the State law claims in another court, whether it be the Federal district court or whether it be in a court of another State, if there's a dismissal without prejudice under South Carolina law, that's considered as if the suit had never been brought in the first place.

Justice Ginsburg: In other words, you're saying it's all right with us if the Federal court adjudicates this purely State claim.

The State isn't offended by that, but it is offended by getting it back even though everyone had notice in ample time within the... the county had ample notice because they received a Federal summons and complaint.

So there was no question of... of repose involved.

But there's one... another aspect of this, it seems to me, passing strange.

Are you suggesting that the removal statute would be vulnerable to a similar attack?

Because that's really... if you're talking about State court, this is wrenching a case out of the State court, ousting the State court of jurisdiction, putting it into the Federal court.

I would think if you're right about sending it back, then you'd certainly object to lifting it out.

Mr. Lindemann: I don't believe the interest here is that South Carolina has a problem with... with the Federal court deciding issues of State law, and I don't think South Carolina has a problem with deciding those issues itself.

The problem South Carolina has in this particular case is with Congress expanding upon State law that actually set the boundaries as to when and how a political subdivision can be sued.

Justice Breyer: What difference does it make whether it's a political subdivision or not?

Suppose South Carolina law said, gas stations shall be immune from suit except that you can sue them within two years, and then the same situation occurs.

Would... would not the Federal court be intruding upon South Carolina's decision of immunity just as much?

Mr. Lindemann: South... yes, the Congress would be intruding upon--

Justice Breyer: So... so--

Mr. Lindemann: --the ability of the State of South Carolina to set a statute of limitations for private defendants.

Justice Breyer: --That's... and that's all we're talking about, to set a statute of limitations whether it's for private defendants or whether it's for Richland County which, as far as Federal law is concerned, is a private defendant, or whether it's for gas stations.

I mean, I... you... you try to make something different of this case by saying what it involves in... is Richland County, but what we, the Federal courts, say is Richland County is not the State of South Carolina.

It is not a State entity, and as far as we're concerned, it's a gas station.

Mr. Lindemann: But I would submit to the Court two points in response to that.

It goes beyond because it's a governmental entity and you look at the application of State law because again, this is a State law case brought and adjudicated in a State court.

And you look at the State law which actually provides a greater defense for a governmental entity than it does for a private citizen.

To give the Court an illustration--

Justice Ginsburg: You would have no--

Justice Breyer: --You give greater defenses for gas stations.

Would... would that change the gas station case simply because you give greater defenses to gas stations?

Mr. Lindemann: --No, it would not change the case.

Justice Breyer: Of course not.

Mr. Lindemann: My point is it... it actually makes a stronger case to show the intrusion on State sovereignty where you have a political subdivision.

And if I may illustrate.

Prior to 1985, South Carolina recognized absolute sovereign immunity for its State entities as well as its political subdivisions.

And if you looked at... the question that comes to mind is whether Congress, prior to 1985, could have enacted a statute that subjects Richland County, a political subdivision in the State of South Carolina, to a claim for negligence in the operation of its local detention center where South Carolina law itself provides there is no such claim because of sovereign immunity.

Justice Breyer: The answer is, of course, they could if they had a... if there was a basis in the Constitution for the Federal Government to pass a law that changes State law.

They do it every day of the week.

And so usually what you ask is, is there a basis here?

Of course, there is.

They say Article III.

Indeed, was there a problem Congress was trying to cure?

Indeed, there is.

It was the mess that existed before the statute.

Is there an infringement of what the State would like to do?

Of course, there is but the Constitution gives the power to the Federal Government to do that.

Now... now, what's... that... like, you know, purely I'd say hornbook.

So what... what is the... what is the special thing about this infringement of the State's power to do what it would like to do here?

Mr. Lindemann: I respectfully disagree with you, Justice Breyer.

If, prior to 1985, Congress wanted to create a situation where Richland County would be liable for the operation of its detention center, it would have to do so in the context of a Federal cause of action which obviously existed at that time under section 1983.

What I'm saying is--

Justice Breyer: So Congress in your opinion doesn't have the power to... to interfere with State law insofar as it creates State laws of action?

Congress couldn't pass tort reform, for example.

Mr. Lindemann: --Well, I believe tort reform in certain instances would be permissible.

I... I believe that... and certainly the... the precedent set by this Court supports this... that Congress has the authority through preemption and through its properly enacted statutes to limit the liability in State court actions... in State law actions, but cannot create liability where none existed previously.

And I'd submit to the Court that I'm not aware of any single example where Congress has stepped in and created a statute that creates a... a State law cause of action or expands upon a State law cause of action to create liability where none existed.

Justice Breyer: Except the Soldiers' and Sailors' Relief Act, for example.

Mr. Lindemann: Well, and the Soldiers' and Sailors' Relief Act, if it is indeed constitutional, is based upon a different weighing of the Federal interest versus the State interest.

You obviously in that case have much greater Federal interest involved than the simple convenience to litigants to have to be able to be... have the ability to file your Federal and State claims in the same Federal action without concern that your State action might ultimately be dismissed after the statute of limitations ran.

Obviously the Soldiers' and Sailors' Act involves First Amendment war powers.

It involves issues of national defense and deployment of armed services around the country where they're not available to... where they don't have the immediate availability of access to our court system.

Those are much different rights, much different Federal interests, and would create a much different issue.

And how this Court would ultimately resolve that issue I cannot say, but it would certainly make a much stronger case for allowing that than the simple case that is... or the Federal interests that are at stake in this particular instance.

The--

Justice Ginsburg: If we went back to the old ways, is there any unconstitutionality in one of the things that was done?

And the Federal judge will say, yeah, this is really State business, but I'm not going to subject the plaintiff to a time bar.

So, defendant, Richland County, any defendant, will you agree that you will waive the statute of limitations should I dismiss this case without prejudice.

The... the... the State... the county certainly could do that.

Mr. Lindemann: --That... that happened frequently prior to 1990, and I'm actually aware of... personally of instances even since 1990 where that's been the case--

Justice Ginsburg: And how about bringing--

Mr. Lindemann: --and that obviously is the solution.

Justice Ginsburg: --A plaintiff brings a protective action and says, I really want this 1983 claim to be the front runner, but if I fail on that, I want to have these garden variety State... whatever it is... assault cases.

So the plaintiff begins a State... a case in State court and the State tort claims, the Federal case, including the 1983 claim.

Mr. Lindemann: That's right.

Justice Ginsburg: Then that would be perfectly all right.

Mr. Lindemann: That would be perfectly all right, and in fact--

Justice Ginsburg: And all that accomplishes is having two cases instead of one, which is if... if that can be avoided, it's... for the efficiency of the system, it's a pretty good idea, isn't it?

Mr. Lindemann: --But realistically looking at the way 1367(d) operates anyway is you often do have two separate lawsuits such as what we have in this particular instance.

Justice Ginsburg: But that's 1367(d) was meant to overcome I thought, having two lawsuits going on, just to have the... the State court sitting there and nothing happening in the event that the Federal court should dismiss the Federal claim and there's a live lawsuit to pick up.

Mr. Lindemann: There are many different alternatives that courts dealt with this issue prior to 1990.

And in fact, I'd submit that there's certainly no authority to support any finding or any conclusion that litigants' due process rights were violated before 1367(d) was enacted.

Justice Breyer: No.

It wasn't necessary to litigants.

It's just that your solution to the problem permits the two parties who want to try their case in Federal court to confer a jurisdiction on the Federal court that the district judge believes it doesn't have and doesn't want.

Mr. Lindemann: Well, and... and that is true.

Justice Breyer: So from a point of view of protecting the State, I guess Congress dived into this mess.

I... I wrote an opinion.

You might... to recall it to mind, it happened to involve a plagiarism.

Did you read... I had a 1st Circuit case.

It involved plagiarism of an Icelandic poet called Franjen Gendulik.

Unknown Speaker: [Laughter]

Mr. Lindemann: I'm not aware of that--

Justice Breyer: And in that... you're not aware of that.

Well, if you don't... that doesn't call it to mind--

Justice Scalia: --It was made into a movie, wasn't it?

Unknown Speaker: [Laughter]

Justice Breyer: But the poem was Suze Sine Razmut Nogot.

In any case, the... the point was at the end of that it seemed like a terrible mess.

There seemed like five solutions.

Each of them had something to be said for it, and so Congress went in to legislate in order to deal with this procedural mess.

Now... now, why isn't that a legitimate interest just as legitimate as the interest in protecting soldiers and sailors, the interest that underlies lots of other Federal legislation?

Mr. Lindemann: --Well, I would submit to Your Honor that that is certainly not a very substantial Federal interest to the extent it is a Federal interest.

Justice Breyer: To deal with a problem of unfairness to States, unfairness to litigants, try to have a uniform rule?

Mr. Lindemann: Well, I don't believe it... it creates unfairness necessary to litigants, and there are obviously solutions around it... and was dealt with by... many courts dealt with this particular issue prior to 1990.

And I would submit that when you balance that Federal interest with the State interests that are involved here and... which is obviously what... what's the analysis under the Tenth Amendment, that the result should be that the State interests involved to be able to control State law and State law claims, to be able to control when and how State... States and their political subdivisions are subject to suit under State law, that those interests far outweigh the Federal interest.

Obviously it is a balancing problem.

Justice Stevens: Isn't... isn't one of the questions who should do the balancing?

Should we do it or should Congress do it?

Mr. Lindemann: Well--

Justice Stevens: Doesn't Congress normally make this kind of policy decision?

Mr. Lindemann: --Well, I believe in this--

Justice Stevens: And the branch of the Federal Government that makes this kind of policy decision.

Mr. Lindemann: --Well, there... there's clearly no... no legislative history that suggests that Congress made that particular balancing.

In fact, there's nothing in the legislative history--

Justice Stevens: No, but I assume the State of South Carolina was represented in Congress at the time they made that decision and could be... could raise all these objections in that forum.

Mr. Lindemann: --Well, I would submit to the Court that just as this Court ruled in the Raygor case last term in the Tenth Amendment context, just like in the Eleventh Amendment context--

Justice Stevens: The Eleventh Amendment was really implicated there.

Mr. Lindemann: --you have to look at whether or not there's a clear statement that Congress intended to affect Federal-State relations such as it did.

Justice Stevens: No, but I think the clear statement rule is limited to States, and of course, counties are not considered the same as States.

Mr. Lindemann: Well, I would... I would submit to the Court that if... if Your Honor is suggesting that only comes into play in Eleventh Amendment cases, that... that... I would disagree with that because Gregory versus Ashcroft was a Tenth Amendment case and this Court ruled based upon the clear statement rule.

Now, whether or not a party has standing to assert--

Justice Ginsburg: Was that... was that a... an immunity--

Unknown Speaker: --That was State officials.

Justice Ginsburg: --official... an officer immunity case?

Mr. Lindemann: --That was a case.

It was a... a ADEA case, Your Honor, looking at the qualifications of State judges in the State of Missouri.

Justice Ginsburg: But the difference is that the State is not amenable to suit in Federal court.

The municipality is just like any other corporation.

So--

Mr. Lindemann: I don't disagree with that.

That's why we are not pursuing this matter under the Eleventh Amendment.

However, a municipality has standing to assert a challenge under the Tenth Amendment, and this Court in the Printz case, Printz v. United States, was actually--

Justice Ginsburg: --It's not a kind of jurisdictional challenge.

I mean, the State... if the State were sued in Federal court and there was a pending claim, the State would say you... we don't fit under 1367(a), and the State is not there at all.

But here this claim is properly brought in Federal court against the city.

Is that right?

Mr. Lindemann: --That... that's correct, Your Honor.

Justice Ginsburg: So it seems to me there's a very large difference in that respect.

Mr. Lindemann: We... we are certainly not arguing that 1367(d) is unconstitutional as applied to... I mean, (a) is unconstitutional as applied to Richland County.

What we're arguing is that the expansion of the State law statute of limitations and the limited waiver of sovereign immunity under State law is what, as applied in this particular case, violates the Tenth Amendment.

Justice Ginsburg: I can see in the abstract what your argument is, but in the concrete, let's take the removal case.

So there's a case lodged in State court.

It's lifted up, put into Federal court, and then more than 2 years later, it gets remanded.

Practically what's the difference in terms of South Carolina and its concern with stale claims between those two cases?

Mr. Lindemann: Well, Your Honor, obviously a removal situation is substantially different in that jurisdiction was first lodged in the State court, and as a result, any type of waiver issue or any type of statute of limitations issue would be resolved by the fact that there was a initial filing of the State court claim in the State court.

Justice Ginsburg: But functionally I don't see any significant difference if the concern is we don't want stale claims.

We don't want to adjudicate claims that have been hanging around more than two years.

In my case, yes, you touched base in Federal... in State court.

What you got was what you got in Federal court, that is, notice that the plaintiff is suing arising out of this particular episode.

I don't see practically any difference if the State's... the State is trying to protect its concern for adjudicating stale claims.

The claim is still stale when it comes back from the Federal court.

Mr. Lindemann: It's not so... as Your Honor pointed out earlier, it's not solely an issue of repose because here because the respondent, the defendant in the... in the underlying case is a governmental entity, there is a aspect of State sovereign immunity that comes into play that doesn't come into play in... in the other instances.

And so you have the added interest of preserving the right of the State in order to determine whether it's going to waive its sovereign immunity, which of course didn't happen until 1985, and when it does waive sovereign immunity, the extent to which it's going to waive it.

And again, I'm referring to State law sovereign immunity, not Federal constitutional immunity under the Eleventh Amendment or otherwise.

So what--

Justice Scalia: I understand that.

I just don't understand why you think we should... we should care.

Mr. Lindemann: --Well--

Justice Scalia: If you're not talking about Federal sovereign immunity of the State, why should we care if... if the State chooses to create some other kind of sovereign immunity that... that isn't the kind that we're concerned about?

Mr. Lindemann: --Because it goes, Your Honor, to the heart of exactly what the... the State sovereignty, the interests of State sovereignty that's involved in this case.

Justice Scalia: No, it doesn't.

No, it doesn't.

The... the essence of State sovereignty is everything covered by Federal State sovereign immunity which is States and agencies of States.

Everything else is not central to State sovereignty, whether... whether they choose to make Richland County a... you know, give them some State sovereignty protection or... or choose to make a gas station that way.

I don't... I just don't understand why you expect this to impress us, that the State has gone beyond Federal State sovereign immunity and created some new element of State sovereign immunity.

I mean, they're... they're free to do that, but I don't see how it invokes any new doctrine under either the Eleventh Amendment or the Tenth Amendment or any other provision of Federal law.

Mr. Lindemann: Well, I'm not submitting that it creates any type of new doctrine, Your Honor.

What I'm suggesting is that it's an aspect of State sovereignty for a State court... I mean, for a State legislature to determine what the law is in that State that is applicable purely to State law claims litigated in a State court.

Justice Souter: Okay.

Why isn't the answer then necessarily the same whether we have a private litigant or whether we have a... a political subdivision?

They said for the private litigants, two year statute of limitations.

Why isn't your answer exactly the same?

The State was exercising the State's... the same sovereign power in each case.

Mr. Lindemann: Well, I believe it would also apply to a private litigant, and I didn't try to convey to the Court--

Justice Souter: Okay.

I... I hadn't understood that was your position.

Mr. Lindemann: --What I'm trying to suggest to the Court is because you have this added element of State law sovereign immunity, which is created by the State constitution, it makes it even a more compelling Tenth Amendment--

Justice Souter: But you don't... you don't need it.

You don't need it.

The private litigant doesn't have any sovereign immunity rights under State law, but the private litigant would be able to insist on the two-year statute just the way the county is insisting on it here.

Mr. Lindemann: --I believe that would be the case.

Now, that's not the issue, obviously, before this Court and that's not decided by the South Carolina Supreme Court.

The South Carolina Supreme Court decided this case in a very limited fashion and found that 1367(d) as applied to political subdivisions in South Carolina, given the South Carolina Tort Claims Act and the history of sovereign immunity... State law sovereign immunity in that State, that as a result, as applied to Richland County, it's unconstitutional.

Justice Ginsburg: Suppose a judge should say... the Federal judge... knowing South Carolina's position on this question, I'll keep the case, which is now an entirely State case, and I know that in diversity cases I'm supposed to apply the State statute of limitations.

So if the Federal judge keeps this case in deference to South Carolina's position that it doesn't want it, it's too late, and the Federal court in a diversity case must apply the State statute of limitations, when... when does that limitation begin, when South Carolina said it would if the case were reinstituted there?

Mr. Lindemann: No, Your Honor.

I would... I would submit that the statute of limitations started to... or ran from obviously the date of loss through... through for the two-year period, and if the case was filed in Federal court within that two-year period, the statute of limitations, as well as the... the argument that sovereign immunity applies, would not be applicable to that case.

But what occurred in this case is there was a dismissal without prejudice of the State law claims.

Under South Carolina law, a dismissal with prejudice is treated as if the suit was never brought in the first place.

And as a result, when the case was refiled in the State court, it was refiled beyond the two years, at which point the statute of limitations had run and at which point Richland County was also entitled to absolute immunity under the South Carolina Tort Claims Act.

And I would again submit to the Court that the reason why we believe that this is a significant issue under the Tenth Amendment for this case and why the Eleventh Amendment jurisprudence of this Court does not govern is... is because of the importance of the State law interest.

And the key to this whole argument is the point that this is not a Federal claim litigated in Federal court.

In fact, the cases that have been cited by the petitioner in their briefs, the Burnett case, the Order of Railroad Engineers case, all of those cases are distinguishable because those are Federal causes of action that are litigated in Federal court.

This is a State law claim that's litigated in State court under purely State law, and we would submit that the South Carolina General Assembly should decide what is the applicable South Carolina law and that Congress does not have the power under Article III and the Necessary and Proper Clause to override that statement of State law and to create liability where no liability previously existed.

And that is the key point.

Congress has the authority through a validly enacted statute and through use of the Supremacy Clause to limit liability in State actions by providing for preemption, ERISA being an example, but there is no example that I'm aware of where Congress has created liability where none previously existed.

Chief Justice Rehnquist: Thank you, Mr. Lindemann.

Mr. Lindemann: Thank you, Your Honor.

Rebuttal of Robert S. Peck

Chief Justice Rehnquist: Mr. Peck, you have 4 minutes remaining.

Mr. Peck: If the Court has no further questions, I would ask that the Supreme Court of South Carolina be reversed and would waive rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Peck.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at 10 o'clock.

Attribution:

The Oyez Project

Featured:

Posadas de Puerto Rico Ass. v. Tourism Co. of PR - Oral Argument

Fri, 09 Jan 2009 14:48:36 +0000

Case:

Posadas de Puerto Rico Ass. v. Tourism Co. of PR

Media File:

84-1903_19860428-argument.mp3

Related Transcript:

1985_84_1903_argument.xml

Transcript:

ORAL ARGUMENT OF MS. MARIA MILAGROS SOTO, ESQ. ON BEHALF OF APPELLANT

Chief Justice Burger: The Court will hear arguments first this morning in Puerto Rico Associates against Tourism Company of Puerto Rico.

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

Mr. Soto: Mr. Chief Justice, may it please the Court:

This case presents a substantial question whether a statute of Puerto Rico violates the First, Fifth and Fourteenth Amendments of the United States Constitution because it completely bans a franchise holder, a casino franchise holder, from advertising or otherwise offering its casino facilities to the public of Puerto Rico.

Without abandoning our Fifth and Fourteenth Amendment attacks on Section 8 of the Games of Chance Act of Puerto Rico, we have chosen to limit our argument to the First Amendment protection extended to truthful information about legal activities, and rely on our briefs for the remaining valid grounds, although in our minds, after living through the over-extensive obligation that Puerto Rico has given to the statute, we cannot characterize this ban as strictly commercial speech.

The over-breadth and vagueness of the ban abridges, has abridged in the past, as the record shows, fully protected speech and public debate speech.

Neither can we accept as valid the classification, subclassification, of a casino speech ban versus the public forum availability open to other gaining activities in Puerto Rico, nor the resident versus nonresident classification that the judgment below added to the original controversy.

However, argument on the First Amendment content based classification of the Act should persuade the Court to hold that casino advertising is protected by the United States Constitution, and that all truthful information about this legal activity cannot be blocked by Puerto Rico in an effort to keep its people uninformed as an extensive means of controlling through speech the activity of gambling.

The best example of the dangers inherent in over-broad prohibitions of speech, containing no guidelines of enforcement for the government, are given by the facts of this case.

Section 8 of the statute reads:

"No gambling room shall be permitted to advertise or otherwise offer its facilities in any manner whatsoever to the public in Puerto Rico. "

In 30 years of enforcement, the government never defined what constituted advertising, nor who was the public.

Neither did it clarify whether in Puerto Rico, including the tourist ones, he or she landed in Puerto Rico.

Unidentified Justice: Ms. Soto, didn't the Superior Court Judge substantially restrict the literal language of the statute when he interpreted it?

Mr. Soto: Yes, it did, Your Honor, but it did not cure the unconstitutionality of the statute as we would argue.

Unidentified Justice: Well, what's left of the statute now?

Is it just the prohibition against advertising in the media within Puerto Rico itself?

Mr. Soto: The statute as construed still prohibits completely all information if it's addressed to the residents of Puerto Rico.

And therefore, it is still a complete ban of truthful information about a legal business to the residents of Puerto Rico, and thus unconstitutional, in our view, as construed.

Unidentified Justice: Well, is it media advertising that it now covers, as the court below has construed it?

Mr. Soto: Well, Your Honor--

Unidentified Justice: What if a matchbook with the name of the casino came into the hands of a resident of Puerto Rico.

Is that somehow prohibited now?

Is that your understanding?

Mr. Soto: --According to what the Judge decided, if it was aimed at the tourists it would not be prohibited.

The problem is that the determination as to what the intent is would have to be based on content.

Each time that an advertisement or information about a casino is... comes across, and for instance, we brought to this Court's attention a case whereby even under the Court's construction now, as recently as after this Court had granted jurisdiction to hear this case, a supplement was published with information about the casino activities upon the opening of the second hotel, the El San Juan Hotel, that merely covered the facilities that were open to the public.

One page out of 52 that cover all the other facilities of the hotel was conceded by the government as casino advertising, and something that they had not done before.

They did not fine us this time, but they said that the case was being turned over for investigation for criminal prosecution.

Now, this statute is a criminal statute and this was a supplement by... an article by the newspaper was not an ad placed, as the Judge directed, and still it's being considered as advertising to Puerto Rico.

So an example that we still have the same problem.

Unidentified Justice: Isn't your First Amendment argument the same, though, whether the statute distinguishes between ads aimed at tourists and ads aimed at Puerto Ricans?

I mean, if the... suppose the statute forbade all ads about the casinos.

Mr. Soto: That's what it does.

We understand that--

Unidentified Justice: Well, it doesn't ban ads aimed at tourists?

Mr. Soto: --As the Court rewrote it, which we understand is what the Court did, and it is impermissible in our view.

It would establish a classification then that I think is also impermissible, of residents versus nonresidents, yes.

Unidentified Justice: While I have you interrupted, your general submission is that the First Amendment requires... or forbids stopping any ads about any legal business?

Mr. Soto: If it's an absolute ban and it leaves no channels open of communications to the residents of Puerto Rico in this case, and the activity is legal, we understand that unless there is a substantial interest by the government, which has not been proven in this case, it is unconstitutional, yes.

Unidentified Justice: Well, what if... would you say it would be unconstitutional for Puerto Rico to say,

"Well, if you want to advertise casinos, be sure at the bottom say, this may be dangerous to your pocketbook? "

Mr. Soto: We have no quarrel whatsoever, Justice White, on having more speech on it if we have to, rather than silencing and keeping the people uninformed altogether as a means.

Unidentified Justice: Under your argument would it be unconstitutional if Congress forbade all advertising of cigarettes?

Mr. Soto: In the case of cigarettes, I find a substantial distinction in that cigarettes--

Unidentified Justice: It's not illegal to smoke.

Mr. Soto: --It is not illegal to smoke.

Unidentified Justice: It's not illegal to manufacture cigarettes.

Mr. Soto: That is correct, Your Honor.

However--

Unidentified Justice: Why would a... why, under your argument, would a complete ban on cigarette advertising be bad or good?

Mr. Soto: --I haven't said that it's good.

I think it probably would pass constitutional muster if--

Unidentified Justice: Why?

Why?

Mr. Soto: --Well, first of all it is harmful to your health according to studies.

In the case of gaming, gaming is a social entertainment and there is no link whatsoever that it causes a deleterious effect in older people.

It may cause, if some people gamble excessively--

Unidentified Justice: Don't you think that Puerto Rico could prohibit gambling altogether and make it illegal because Puerto Rico could determine that it's bad for the citizens?

Mr. Soto: --Yes, I do, Your Honor, Justice O'Connor.

I think they can prohibit it together.

But having legalized it, and having other means available already in the Act that are affected, I don't think they can--

Unidentified Justice: Well--

Mr. Soto: --Through speech, control it.

Unidentified Justice: --Well, suppose you have a state like Alaska that has legalized the use of marijuana, personal use of marijuana.

Do you think Alaska can prohibit all advertising of marijuana?

Mr. Soto: I think once having legalized it... I am not familiar with the case of the marijuana statute in Alaska, but once having legalized it, I think it can be restricted through a means and manners restriction.

I think it can be added more speech as to what effects... so as to keep the people educated, how they should not be using it.

But I don't think they should be able to prohibit it altogether either, no.

Unidentified Justice: So, it would be unconstitutional then to forbid ads about cigarettes, smoking, as long as smoking is legal?

Mr. Soto: As long as smoking is legal.

Or, my position is, since it is inherently dangerous to health, it might be possible to ban it.

Unidentified Justice: What about marijuana?

Mr. Soto: That would be the same thing with marijuana in that case, then.

We can make that analogy.

But, it's not the same thing with gambling.

And, that is our proposition.

Gambling has not been proven to be deleterious per se, because it's not inherently dangerous.

It is simply a leisure entertainment activity for most of the people.

It's social, fun, thing to do, and to some people it may be, if it's excessive, cause some harm but that is not the general proposition here.

And if we extend now... I mean, so many other things could be harmful.

There are so many carcinogenic things now, that causes cancer.

Should they all be prohibited, then?

I think that in the absence of a substantial interest, ban on speech is not the narrowest means to obtain that end.

Unidentified Justice: May I ask this question, publications in the United States magazines and newspapers do circulate in Puerto Rico, don't they?

Mr. Soto: Yes, they do.

Unidentified Justice: New York Times, Time, Newsweek and so forth?

Mr. Soto: Yes.

Unidentified Justice: Does the statute ban... would the statute ban your casino from advertising in those publications?

Mr. Soto: The statute did ban all kinds of media.

The way it was construed by the Court, it would allow, if it's published in the States and it comes through into Puerto Rico... as construed by the judicial branch.

Unidentified Justice: Under the construction of the Superior Court, your, client could run items in publications in the United States if it's circulated in Puerto Rico?

Mr. Soto: Yes, under the construction of the Court, yes.

Unidentified Justice: In other words, if the ban is limited to local media?

Mr. Soto: Correct, under the construction.

Now, the facts of this case are clearly... I'm familiar with it, but to go briefly through them, Posadas was fined for the first time when a supplement was published in the San Juan Star, an article about annexing the Laguna Wing to its already facilities, and there was an ad placed by our union, our casino union, that contained no message about promoting the casino, but that included the word "casino" as its trade name and a little drawing about a roulette in the background.

Tourism understood that was casino advertising, and it warned... Tourism warned Posadas that it was violating the law.

Because it did not get a reply from Posadas, a fine was imposed on the company.

This interpretation was immediately challenged by Posadas, but while a ruling was pending the gaming director wrote a letter to the president, then, that was stationed in Missouri, informing about the violations in the operations in Puerto Rico.

The president was quick to answer, but used stationery that had the word "casino" on it, and since the government understood that the word "casino" on letterhead is also advertising, a second fine was imposed on Posadas.

The third fine was imposed after the ruling came out and the ruling was upholding an absolute ban on speech, and because one of the guests that was staying in the hotel had a brochure that was left in his room and was handing it at the lobby, which was a public facility, to the government inspector, and they thought that was casino advertising also, and there was a third fine that was imposed on Posadas.

And the fourth fine really was a public debate issue where the president was holding a press conference and photographic session to protest legislation that proposed to ban the slot machines from Puerto Rico.

Unidentified Justice: Ms. Soto, were all four of these instances after the Superior Court Judge issued his ruling?

Mr. Soto: Yes, Your Honor, they were all there.

Unidentified Justice: And are they all, in the views of your opponent, so far as you know, consistent with the Superior Court's Judge's ruling?

Mr. Soto: Yes.

As a result of these four fines, Posadas' reputation was tainted to the extreme that our system operation in Atlantic City was recommended denial of a casino license because the new Gaming Enforcement Division of our jurisdiction understood that Posadas was an unsuitable operator.

At that point, declaratory judgment was sought, at that initial stage, on Paragraph 9 of the complaint, that three challenges to the First, Fourteenth Amendment, and due process were brought up at that initial level.

In the case of the due process we did not specify whether it was the Fifth or the Fourteenth Amendment because as we understand it, this Court has now decided which of the two due processes are applicable to Puerto Rico, as declined in the Calero-Toledo case.

Unidentified Justice: Ms. Soto, I thought the fines were imposed before the Superior Court made its final interpretation of the statute?

Mr. Soto: That is correct.

Before that--

Unidentified Justice: You just told Justice Rehnquist it was after.

Mr. Soto: --Oh, I'm sorry.

I misunderstood you, then.

No, no.

The fines were imposed before.

I thought he said--

Unidentified Justice: It was my understanding that the determination of the Superior Court when it in effect rewrote the statute, if that's what it did, that the Judge did that after all these fines he did impose?

Mr. Soto: --Yes.

These four fines, and the fact that we were almost denied a hotel license, was before the final--

Unidentified Justice: Well, then, why shouldn't we proceed with the argument over what's left of the statute, rather than what happened before?

Mr. Soto: --These were the facts that brought the case up.

We continued then... we have to... as a basic proposition, we think that by the Court rewriting the statute it has invaded legislative functions, and our main recommendation is that this statute--

Unidentified Justice: Well, didn't--

Mr. Soto: --as it was is the one that should be construed by this Court.

Unidentified Justice: --But, aren't we bound by the interpretation of the statute by the courts in Puerto Rico?

Mr. Soto: I don't think that has been decided, Justice O'Connor.

I think if this Court agrees to extend to Puerto Rico the protections as if it were a state, which I think it's undecided up to this point--

Unidentified Justice: If the action came from a state, would we not consider as binding the interpretation of the statute by the court below?

Mr. Soto: --I think you would in matters of local law.

However, even--

Unidentified Justice: Would the state cross-appeal, or make a cross-filing here about the court's interpretation?

Mr. Soto: --No.

Unidentified Justice: No, so don't we... shouldn't we just follow the ruling of the court below as a matter of local law?

Mr. Soto: I don't think so, Your Honor, because the state deference will not preclude the Court... this Court's role as the final arbiter of the Federal Constitution, when it means the invalidation of a statute.

Unidentified Justice: But all Justice O'Connor is asking about is the matter of how the statute is intended to read.

We have to take the word of the Superior Court.

Mr. Soto: Not if it clashes with the Constitution of the United States.

Unidentified Justice: No, no, but as to how broadly the statute sweeps.

There, we would defer to the Superior Court, would we not?

Mr. Soto: If this Court decides to defer, yes.

I just bring the proposition because I don't think that has been decided yet, so the proposition was that in one case you would go and interpret it directly, yourselves, you do give it state... status, as is, it's still unconstitutional.

Unidentified Justice: May I ask you a question at this point.

Is it correct that even after the judge rewrote the statute, it still prohibits the use of the word "casino"?

The statute as reconstrued by the judge still prohibits the use of the word "casino"?

Mr. Soto: If it's addressed to the residents of Puerto Rico, everything that has to do with a casino is still prohibited.

They have allowed the word of "casino" in a trade name of--

Unidentified Justice: One of the incidents was being fined, as I understand it, for this press conference with the black ribbon across the slot machines and so forth, and the word "casino" appeared in the story.

Would that fine have been imposed under the statute as reconstrued, or--

Mr. Soto: --I think so, because that's precisely why I brought the example of a recent case that happened just this December.

That was after the statute was construed, whereby under this interpretation and even after this Court had granted jurisdiction, or construed jurisdiction at least until the merits... they are still construing the statute that if it's addressed to the public of Puerto Rico it's prohibited, and here we are talking about a supplement that was in English.

Here we have a market that, although Puerto Rico is a secondary market, but we have only about a fifth of the tourists that come to Puerto Rico staying in hotels, and of those that stay in hotels only 60 to 70 percent stay in hotels with casinos.

So, our market out there in Puerto Rico, of the tourists, is large, and how are we going to be able to juggle, how to get to the tourists without getting to the residents?

And then, it's going to be an intent of whether, is it intended to the residents?

Here is an English supplement, and we are being investigated for criminal prosecution this time, not only a fine.

On the jurisdictional question which this Court would have me address, a facial attack on Section 8 was properly raised at every level of the proceeding, initially in the complaint, Paragraph 9 as stated, and throughout in the Notice of Appeal, Motion for Rehearing, and the Court acknowledged that in his own opinion when he said that the First, Fifth and Fourteenth Amendments were applicable to the question at bar.

And, there are no independent state grounds for dismissal, expressed, at least on the merits... on the face of the judgment below, but rather that the Court dismissed the case for lack of a substantial question, which is a decision on the merits and therefore the decision is final and properly appealable to this Court.

Due to the time limitations we will rest on our briefs, on the rest of the jurisdictional questions, unless there is some concern of this Court, and we will move on to the substantiality of the question, which we think is very substantial as it abridges, first, commercial speech rights, it establishes a subclassification of casinos versus other legalized gaming.

The classification is more suspect because it is a content based classification on speech, and it has raised now that the opinion below has come out of a second classification of residents versus non-residents, in addition of intruding into core speech rights because of its overbreadth and vagueness, violated due process guarantees.

The judgment below did not put to rest the issues.

Therefore, we have to look into the merits of the ban itself and whether the government has met the burden that at least the Central Hudson test has imposed when abridgement of first commercial speech rights are involved.

The activity is constitutionally protected because gaming has been legal in Puerto Rico since 1948, and there is no suggestion on the record that the information given is false or misleading.

Whether the government has had a substantial interest is kind of vague, because the government has advanced five substantial interests up to this point, two in the original complaint which was that the tourists would be protected from the patronizing of the residents of the casino, which we fail to see how that could be, and also that the Puerto Rico residents would not promote tourism and do not contribute revenues to our economy, which is also not a serious argument, I don't think.

Then, we would say that income tax from state residents are not income to the Treasury.

In its Motion to Affirm, it added that the government interest was to discourage the games of chance so that the Puerto Rican would earn his bread with the sweat of his brow, but that doesn't seem to be a substantial interest on the face that the government itself runs the state lottery, advertises it, allows it, very permissive with horse tracks.

It's very permissive with cockfights, all of which are highly patronized by the Puerto Ricans, while the casinos are not.

This Court's level... for the first time, a tourism company brings, a casino information has no value in our free market society which is contrary to the Virginia holding and the progeny cases that follow, and that advertising will lead to excessive casino gambling with no factual basis at all on the record.

These changes in substantial government really brings out the fact that it seems that the government is really fishing for a substantial interest that will uphold its own dislike of speech about gaming.

But the true government goal, as read from Section 8, is a guard on a legal speaker and the election of public ignorance as a means of controlling legalized gambling.

While the government has in the Act means that directly advance, such as minimum and maximum limits, strict supervision on a daily basis, no on-premise alcohol consumption, no minors allowed, a slot foreman to avoid slot houses, criminal sanctions for violating the law, credit procedures and controls, surveillance, and now IRS reporting on the Bank Secrecy Act.

Other non-speech related controls and affirmative speech programs as suggested by Justice White may be adopted by Puerto Rico.

That would directly advance these roles which we are not challenging.

We do not mind the strict regulation of gaming.

We just don't think that speech is the proper way of doing that, without unduly burdening the franchise holder entitled to conduct its business by the government inducing it for its own economic benefit.

What Puerto Rico cannot do is deter gaming by blocking information about gaming in any manner, if addressed to the resident, because it is not the least restrictive means tailored to that end.

The government has not met its burden, not a trial, not an argument which is really not evidence that would substitute trial evidence, for a departure from this Court's precedent on commercial speech.

It merely relies on the word of Section 8, while we introduce at least the only study that has ever been made on gaming in Puerto Rico, it's in your brief, and which proves that just the opposite, as soon as gaming was regulated in Puerto Rico the former patronizing of the people of Puerto Rico of illegal casinos, which was 100 percent doing that, lost to five percent, because of the highly regulated nature of the gaming activity itself which is what we advanced.

There is no substantial evidentiary ground for Tourism to request, or the government, that this activity be placed outside of the umbrella of the Constitution, together with illegal activities and together with child pornography and obscenity, because it's none of that.

Gaming is legal in Puerto Rico, and there is no reason why this Court should backstep 11 years to the Bigelow versus Virginia era when truthful information about legal activity was totally suppressed, or was able to be totally possessed.

As a matter of principle, a prophylactic ban on protected speech must withstand at least the intermediate scrutiny of Central Hudson which we just went through, although we prefer the view of the construction that the Constitution has made the choice of keeping the people of the United States informed as long as we are a free enterprise democracy, and Section 8 does not meet this test.

We would like to keep the remaining time for rebuttal.

Unidentified Justice: --Ms. Soto, before you sit down, of no importance but is this the old Condado Beach Hotel or a new one?

Mr. Soto: No, it's a different one, Your Honor.

It's the old San Geronimo Hotel.

It's not the Condado Beach.

Unidentified Justice: Thank you.

Chief Justice Burger: Mr. Saldana.

ORAL ARGUMENT OF LINO J. SALDANA, ESQ. ON BEHALF OF THE APPELLEE

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

The main issue here is the validity of a statute that restricts the advertising of casino gambling in Puerto Rico, and the first question that we must address is the scope of the restriction.

Now, appellant is attacking here before this Court the statute, the 23-word statute, not the statute as it was interpreted by the Superior Court.

And, of course, that is the wrong approach because what the statute means must be determined by what the Superior Court decided that it means, and that interpretation is binding upon this Court as it has been decided by many, many precedents applicable to states, which are perfectly applicable to the Puerto Rico Supreme Court... or the Commonwealth Court--

Unidentified Justice: Mr. Saldana, what do you say is left of the statute?

Exactly what conduct, in your view, does it now prohibit as interpreted by the Superior Court?

Mr. Saldana: --That is the question, precise question, that must be addressed in the first instance.

And what is left may be described as follows: the Superior Court said that no advertisements of casinos addressed to residents of Puerto Rico would be allowed in general, when published in the local media.

But then, it went on to make a series of exceptions, even to that general rule.

It excepted, for example, advertisements which were distributed to residents if residents are clients of the hotel, not even guests, but clients, just people who are in the hotel premises.

So, if residents are in the hotel premises, there is no restriction at all.

Unidentified Justice: But may I ask you, just on that right now.

Mr. Saldana: Yes.

Unidentified Justice: Supposing... could they advertise in a local newspaper?

Mr. Saldana: They could, yes, Your Honor.

Unidentified Justice: They could?

Mr. Saldana: They could, provided the advertisement is not addressed to residents.

If the advertisement is addressed to--

Unidentified Justice: But if the newspaper... supposing you have a newspaper of general circulation in San Juan.

I don't really know... and 95 percent of the people who subscribe to it are local residents, if they put just a big ad in there, come to the casino at such and such hours, would that be permitted under the statute?

Ninety-five percent of the subscribers are local residents.

Mr. Saldana: --I would say that if in the advertisement, Your Honor, it is stated that this advertisement is addressed to tourists and not to residents, that that leaves it permissible.

Unidentified Justice: Even though 99 percent of the people who buy the newspaper are really not tourists, it's still all right as long as they put in the ad,

"Nobody but tourists should read this ad? "

Mr. Saldana: Well, nobody but tourists are invited to visit the casino.

Because, that is what the court is prohibiting.

The court is prohibiting a casino from advertising to entice residents to visit and gamble at its casino.

Unidentified Justice: But they don't prohibit them?

The local residents can go if they want to?

Mr. Saldana: Oh, yes, sir.

There is no--

Unidentified Justice: Well, what does the advertisement say,

"You legally can go but we don't want you? "

[Laughter]

Mr. Saldana: --No, they are saying, you legally can go but the demand for gambling among residents should not be stimulated artificially, should not be increased by advertisements from casinos.

Now, in other jurisdictions, in the Bahamas, in Aruba and Monaco, the laws prohibit residents from going to the casino, as Your Honor has suggested that Puerto Rico may have done.

In England, for example, it is not prohibited but advertising to local residents is prohibited.

Now, the advertisement... the prohibition of local residents, the prohibition to visit or to gamble at local casinos is perfectly unworkable, Your Honor.

That is why it is not prohibited in Puerto Rico, because there are no means of identifying who is a tourist once they come into the casino, and who is a resident.

Unidentified Justice: Well, in some places it is.

In some places you have to show a passport.

Mr. Saldana: Yes, but there is no tourist--

Unidentified Justice: You don't need a passport?

Mr. Saldana: --Normally don't need passports in Puerto Rico, and we don't have any ID cards issued by the government.

Unidentified Justice: There's no law that prohibits local persons from gambling in a casino in Puerto Rico?

Mr. Saldana: That is true.

Unidentified Justice: It's just as legal as going to church?

Mr. Saldana: Yes.

Unidentified Justice: Mr. Saldana, what is this most recent criminal investigation that's going on concerning the Posadas that has arisen since the Superior Court interpretation?

Mr. Saldana: It does not concern Posadas at all.

It concerns another casino that is owned by another company, which is related to Posadas.

Posadas--

Unidentified Justice: All right, and for what activity is it?

Mr. Saldana: --The advertising appeared in a newspaper when the New San Juan Hotel was opened, and the New San Juan Hotel has a casino and they published a 35-page supplement in a newspaper about the wonderful new casino and all of its facilities, and one of the pages was an advertisement describing in detail the gaming facilities, how many tables, gaming tables they were, what the roulettes were, what the card games available there were, and that it was the best casino in all the world.

And then, they published a picture--

Unidentified Justice: And would it have been all right if they had added in it that local residents shouldn't read it?

Then it would have been all right, in your view?

Mr. Saldana: --In my view, if that advertisement had been addressed to tourists exclusively, there would be no prohibition.

But the point is that it was not so limited.

The advertisement was addressed to everybody.

Now, the Court in its interpretation not only permitted advertising to residents if they are within the hotel premises, but permitted advertising to residents by all sorts of souvenirs, match boxes, and other such devices, publicity devices, that freely circulate between residents or among residents.

The Court also permitted advertisements in local magazines which are for... mainly for distribution to tourists, but if... the Court said they reach the hands of residents, that doesn't make them legal.

Then it excluded completely all advertising outside the jurisdiction of Puerto Rico.

That is... referring now to the question that was put by Mr. Justice Powell a while ago, advertising that is published in the New York Times which circulates in Puerto Rico every day, we buy it every day and we read it and a lot of persons read it.

Not only in that... that was just an example, but in any magazine like Time Magazine or Newsweek or any other magazine in the United States.

Unidentified Justice: I suppose that would be rather expensive advertising for one community to have to advertise in a national publication in order to distribute locally, wouldn't it?

Mr. Saldana: Well, it is a restriction, Your Honor.

There is no... but the advertising is not restricted, outside of the United States is not restricted to national advertising.

It may be a paper or a magazine, and there are many of them, that are published mainly for Puerto Ricans in New York or Puerto Ricans in the States, the Puerto Rican communities in the States, and these papers and magazines circulate in Puerto Rico.

They are even printed in Spanish, too.

Well, those advertisements are excluded, which--

Unidentified Justice: Would you say the average tourist in Puerto Rico knew there was gambling, before he went?

Mr. Saldana: --No, no, sir.

I don't think so.

There are many tourists--

Unidentified Justice: Isn't that the reason he went, for the average tourist?

Mr. Saldana: --There are many tourists that come to Puerto Rico who are not informed, other than maybe in a very general way--

Unidentified Justice: Two or three.

Mr. Saldana: --Yeah, but... no, I don't think so.

Your Honor may be thinking that most tourists come to Puerto Rico to gamble, and I would seriously doubt that that is so.

The--

Unidentified Justice: How many tourists from the Virgin Islands go to Puerto Rico, other than to gamble?

Mr. Saldana: --I have no idea, Your Honor.

Unidentified Justice: Just guess.

Mr. Saldana: I know that the hotels in Puerto Rico, there are 13 gambling casinos, ten of them in the San Juan area, and three of them outside.

And they make quite a publicity among tourists and they make quite publicity in the Virgin Islands, so that they may be enticing them to come to San Juan.

I agree with Your Honor.

But, the point is that this is no absolute and complete ban.

It's... if you take the Court's... the Superior Court's interpretation, how can you say that it is an absolute ban?

It's very relative ban of advertising, is very limited.

It concerns only residents and only to residents, to local medias.

And, there is also a very general rule interpretation made by the Superior Court, it's an important aspect, is that if there is any doubt as to whether an advertisement is addressed to a tourist or is addressed to a resident, then it is permissible because the court stated that the general rule would be that the advertising which is addressed to tourists is completely exempt from the prohibition.

And therefore, I submit that this is no absolute ban, and that's what is before this Court.

Unidentified Justice: Mr. Saldana, let me ask you a question about procedure in Puerto Rico.

As I understand it, the Supreme Court of Puerto Rico entered an order which did two things.

It said that the appeal did not present a substantial constitutional question, and therefore dismissed the appeal.

Mr. Saldana: Yes, sir.

Unidentified Justice: And secondly, it said, considering the writ filed as a revision, it is denied.

Now, is the writ that was denied something like our certiorari practice where they have discretion to grant or deny the writ?

Mr. Saldana: Yes, Your Honor.

Unidentified Justice: So, to what extent, then, have they... is there a precedent?

Have they adopted the reasoning of the trial court, or is it just... they just decided not to review the case?

Mr. Saldana: The rejection of the appeal for lack of a substantial constitutional question is equivalent to an affirmance of the Superior Court--

Unidentified Justice: As to being no constitutional violation?

Mr. Saldana: --That is so.

Unidentified Justice: But not necessarily an affirmance of its interpretation of the statute, I take it?

Mr. Saldana: It is an affirmance of the... it is like an affirmance by this Court of a judgment when the appeal is summarily dismissed.

Unidentified Justice: Right.

And the judgment in this case granted no relief to the plaintiff, it just had a long opinion reconstruing the statute and ultimately dismissed the complaint, didn't it?

Mr. Saldana: It ultimately dismissed the complaint, but in its interpretation it went a very long way.

Unidentified Justice: Yes, but the judgment of the Supreme Court merely affirmed the judgment, which was dismissing the complaint, is that right or am I wrong?

Mr. Saldana: Well, it affirms the judgment and the reasoning, and the reasoning is--

Unidentified Justice: The reasoning?

Mr. Saldana: --Yes.

The problem, Your Honor, with the jurisdictional matter here, which I should perhaps have addressed first, is that this is an appeal that comes from the Supreme Court of Puerto Rico and the validity... the record shows that the validity of the statute was not challenged at all stages of the proceedings.

It was not explicitly challenged, and certainly it wasn't challenged on federal grounds, because the only mention of federal law is the one made before this period, for the appellant... plaintiff below referred to a claim of right regarding what he called his First Amendment rights.

It did not even mention free speech, just First Amendment rights, and he claimed that the administrative interpretation of the law infringed his First Amendment rights.

Now, he did mention that there was an equal protection right involved, the equal protection right protected by the United States Constitution.

It did not mention any specific clause of the Constitution whatsoever.

As to due process, there was no further claim at all in the Superior Court.

Then, when we come to the Supreme Court, at the Supreme Court level there was again no specific claim of invalidity of the statute involved, and as to appellant's claims of right, there was no federal equal protection right claimed.

There was no federal due process right claimed.

And as to the other matter involved, other question tendered here for appeal, the only reference was to right of expression protected by the Bill of Rights.

Unidentified Justice: Mr. Saldana, in the Superior Court's opinion, in its Conclusion of Law 13, the Superior Court said that the First, Fifth and Fourteenth Amendments of the Constitution of the United States are applicable to the controversy.

Now, if the Superior Court passes on it, the fact that it may not have been properly raised does not defeat maintaining the claim here, I don't think.

Mr. Saldana: No, Your Honor.

But notice, Your Honor, that the Superior Court merely says that it was involved, that these clauses were involved.

The Superior Court did not even pass on these matters.

And the judgment issued by the Superior Court was merely, we issue now a declaratory judgment concerning the interpretation of this statute, where federal rights are involved.

But, the specific challenge to the validity of the statute, to the authority to enact the statute, was never made before the Superior Court and was never made before the Supreme Court either.

Now, the Supreme Court appeal, we have argued, was also untimely because it was filed too late, and the reply brief that appellant has filed is very significant, in my judgment.

It does not present any rebuttal of the defects that have been pointed out in the appellee's brief.

It merely states, as a naked statement, that the appellees' claim was properly presented, and then it goes on to beg the indulgence of this Court, that the appellant was pressed for time, that the appellant decided at the very last moment to file an appeal before the Supreme Court of Puerto Rico, and that that was why it didn't make things... it didn't do properly the appeal.

It didn't raise the constitutional issues as it should have done.

But unfortunately for the appellant, as we all know, jurisdictional requirements cannot be dispensed with and cannot be waived.

He may have a perfect excuse otherwise for not doing the right things, but if he didn't do it then there is no jurisdiction and that is what we claim.

Now, the... going to the merits, I would like to state in simple terms our position.

The main position of the appellees in this case is that First Amendment protection should not be extended under the commercial free speech doctrine to advertising of casino gambling.

And the reasons in support of that position are in brief, that gambling and casino gambling is an activity that is harmful to the community, that it is a vice-strewn activity, and that Puerto Rico should have the power to legalize casino gambling if it believes that, for example, it is unwise or impractical to prohibit it altogether because people will gamble anyway, or because it expects to derive some economic benefit from the legalization of casino gambling, but that there should be no requirement that then Puerto Rico should allow casinos, to promote and to actively advertise and market their services and their products so as to create new gamblers.

And the same would apply, I would suppose, to the marijuana case that was put by Justice O'Connor, because a state is allowed to legalize marijuana but it is prohibited from telling people, "Don't advertise marijuana", then new persons who consume marijuana will be encouraged to do it.

I mean, it's not... the state will not be able to limit the legalization to what the existing demand for marijuana or gambling or casino gambling is at the time that it is legalized.

In our case, the situation is very, very difficult because there's no doubt that casino gambling is a very dangerous activity, that it attracts and has attracted, in Nevada and Atlantic City, it has attracted the crime gamblers.

It has attracted organized crime, and provoked a host of other problems concerning law and order including among others the corruption of government officials, as the Abscam investigation showed in Atlantic City where the senior Senator, federal Senator was involved in taking bribes.

Unidentified Justice: Mr. Saldana, may I ask you another question about the procedure in this case.

The judgment of the trial court ends with the statement,

"These guidelines may be amended in the future by the enforcing agency pursuant to the dictates of the changing needs and in accordance with the law and what is resolved herein. "

And, I would just like to get your views on, how firmly can we rely on what the trial judge has done here as a definite rule for the future, if he says... winds up by saying the enforcing agency can change the rules?

Mr. Saldana: Well, I interpret that, Your Honor, to mean that the enforcing agency can change... can adopt new rules as to things that are not decided in the opinion, but the Court was not telling the enforcing agency, "You can change my judgment", because they it would be a nullity.

Unidentified Justice: But he says,

"These guide regulations may be amended in the future. "

Mr. Saldana: Well, yes, I interpret that, that they may be amended to include new things, to make new provisions, but that the judgment it renders, the declaratory judgment, is of course valid and binding between appellant and the tourism company.

Unidentified Justice: I see.

Mr. Saldana: Now, we... going back to the merits, the issue here is simple in a sense.

If Puerto Rico cannot prohibit the marketing and advertising of casino gambling, then it is faced with a tremendous problem because the experience in Nevada and Atlantic City shows that when you open up the floodgates of advertising and promotion, the casinos, the gambling casinos take over.

They take over as in Nevada where the principal industry is casino gambling.

They take over because they exercise such a tremendous influence.

Unidentified Justice: Why not get rid of casino gambling?

Mr. Saldana: I'm sorry, I--

Unidentified Justice: Why not get rid of casino gambling?

Mr. Saldana: --Yes, so that the only alternative would be to get rid of casino gambling, because I believe that Puerto Rico--

Unidentified Justice: You'd lose all the taxes, wouldn't you?

Mr. Saldana: --We lose... we would lose, Your Honor, not only the taxes but the help that casino gambling tourists give to the tourism industry in Puerto Rico.

But I believe that it would be preferable, and I believe that Puerto Rico would find it preferable to ban completely casino gambling rather than let them advertise without limit, and let them advertise and market and create new gamblers and create new demand, and follow the pattern and the model of Nevada and Atlantic City where it's an incessant cycle of growth for these people.

They grow, they promote an increased level of demand and then they expand and they grow, and then they again promote the demand, and finally what they do is they take over the state.

Well, Puerto Rico does not want to be another Nevada or another Atlantic City.

So that, if this Court decides that we cannot limit advertising, the only recourse will be to prohibit casino gambling altogether.

Chief Justice Burger: Do you have anything further, Ms. Soto?

Mr. Soto: Yes, Mr. Chief Justice.

I would just like to rely on two points made by brother counsel, one on the jurisdictional question.

It's completely meritorious, the challenge that the question was not raised properly and that it was a last-minute thought to bring a facial attack.

It was brought properly.

There are specific references in your record that it was brought in the Complaint, in the Notice of Appeal, in the Motion of Rehearing, plus in the Declaratory Judgment.

It particularly reads:

"The Judgment itself will hereby declare that Section 8 of the law is not conlusive [inaudible] from its face, and is sustained. "

"There was a facial attack right from the very beginning and right on, and the constitutional... by number, First, Fifth and Fourteenth, recognized by the trial court as being properly raised, with regards to the merits. "

What is left of the judgment below opinion is unconstitutional, because as Justice Stevens very well brought out, and I have it on my notes, before I couldn't cover it, this opinion is subject to change.

Ana not only is it subject to change, it was going to be changed this year.

This very year it was going to be changed by the Tourism Company to include only the paragraph A which is the proscription that Posadas or any other gambling casino would advertise to the public in Puerto Rico, without including all the other exceptions the Board had made, and it can be done at any minute because the Court contemplated the possibility, that if if was regulated, as it was... certain regulatory functions, they could not take them all together from the Agency and the Agency could change these regulations any time it saw fit.

So, therefore, all channels of communications to the residents are still closed, they are foreclosed, an the section in the paragraph... in the article that was published, which by the way it is the same company that manages both hotels, Posadas Hotels and the El San Juan Hotel, proves that the content of this article is not enticing the people to come and gamble in the casino, and it is not paid publicity, which is what the Judge held.

It is an article covering all sorts of things including job opportunities, and the people that we want to employ and where do we recruit them.

ORAL ARGUMENT OF MS. MARIA MILAGROS SOTO, ESQ. ON BEHALF OF APPELLANT -- REBUTTAL

Unidentified Justice: Yes, but that's not in the record, is it, Ms. Soto?

That's not in the record before us, is it?

Mr. Soto: Yes, it is, Your Honor.

Unidentified Justice: Was that in the--

Mr. Soto: It is on the record.

It's particularly... it's Appendix D in our reply brief.

Unidentified Justice: --It's in your reply brief, but it was not in the record before the trial court because it didn't happen before?

Mr. Soto: No, it didn't happen before.

It happened after.

It was duly authenticated, the signature of the Secretary of Justice through the Department of State, and brought properly under Rule 201.

Unidentified Justice: May I ask you just one more question that puzzles me about the... what is all this business about the use of jackets by men?

What was that?

Mr. Soto: That was a [inaudible] question that arose while the case was being tried by the judge, whereby they required a jacket to go into the casinos to the men, while they didn't require proper attire for women, and the court found that it was unconstitutional.

And since, it has been changed.

Regulations have been adopted flexibilizing the dress code.

Unidentified Justice: Was that a challenge that you and your client had made against--

Mr. Soto: We have made a claim but the court became aware of it, and thought it was unconstitutional and--

Unidentified Justice: --And just sort of threw it in the... okay.

Mr. Soto: --The problem... the problem still exists with the statute as construed, in addition that it can't be changed.

It subjects a casino franchise holder to self-censorship all the time, plus when it finally does advertise, that advertisement is going to be judged on content.

I think either one [inaudible] violates the Constitution and for such reason, we request that this Court strikes down under Section 1258(b) which is properly raised on appeal, this case, the decision below.

We feel that Yu Cong Eng rationale, although it is an old case, is still valid.

It has been recently and approvingly cited in Matthews versus Heckler whereby this Court entertained directly to evaluate the section challenged and the [inaudible] broken down as we think this one should be.

Thank you.

Chief Justice Burger: Thank you, Counsel.

The case is submitted.

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Aetna Life Insurance Co. v. Lavoie - Oral Argument

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

Case:

Aetna Life Insurance Co. v. Lavoie

Media File:

84-1601_19851204-argument.mp3

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1985_84_1601_argument.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: Mr. Olson, I think you may proceed whenever you are ready.

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

This is an appeal under 28 U.S.C. Section 1257(2) from a judgment of the Alabama Supreme Court upholding the constitutionality of an Alabama law which imposes a 10 percent penalty on an unsuccessful money judgment.

Underneath the dispute with respect to jurisdiction, there is a well-established Alabama practice which we believe and we have discussed, in the briefs resolves the questions which have been raised about jurisdiction both with respect to the 10 percent appeal penalty under the Alabama law, and with respect to the other issues which are brought to this court with this appeal.

There is a well-established Alabama practice of considering issues which have been raised on rehearing or in other postjudgment motions.

We cited to the Court 17 cases in our briefs in which Section 12-22-72 of the Alabama Code was raised in a postjudgment petition for rehearing context.

Unidentified Justice: The Respondent points out its view for differing with you on a number of those cases and suggests the few remaining ones don't establish a practice.

Mr. Olson: We respectfully, of course, disagree, Mr. Justice Rehnquist.

Those, the cases... the Appellees have attempted to narrow down those cases, but in their efforts to narrow down them present a distinction without a difference.

The fact is that questions of construction or the questions of the application of that particular statute have been raised in that postjudgment rehearing context.

In addition, as we set out in our brief, we presented over two dozen cases, and in fact, we pointed out to the fact that a number of the cases raised by Appellees themselves involve situations where the courts of Alabama discussed a rule but then went on to rule on the merits.

The fact is that to the extent that there is an articulation from time to time of a rule that issues cannot be raised at that posture of the proceeding, the court has gone on to do so in a regular basis.

There is no strict or regularly followed rule which would preclude raising the issues at the time that they were raised in this case.

Before moving on to some of the issues in this case, I would like to briefly just emphasize, and because the facts are somewhat complicated, I will not have an opportunity with the time available to discuss all of the facts, we accept as we must the facts which are set forth in the record before this Court and as articulated by the Alabama Supreme Court.

I simply wanted, unless the Court would prefer a longer discussion of the facts, to recite or call to the Court's attention two particular aspects of the facts as set forth in the Alabama Supreme Court.

First of all, those facts as set forth by the Alabama Supreme Court opinion were edited, selected and set to music, as it were, by Justice Embry, the Justice of the Alabama Supreme Court whose conduct is called into question here so that while we do not dispute, as we cannot, the facts in that case, the emphasis, the characterization of the facts, is due to the fact or must be considered in light of the circumstances that was written by Justice Embry.

Unidentified Justice: Well, of course, other people joined his opinion.

Mr. Olson: That is correct, and we are not disputing the fact that other people joined his opinion with respect to the holding of the Alabama Supreme Court, but that the characterization of those facts in that case must be understood in the context that they were written by the Justice who, as we have demonstrated, had a very strong interest in the outcome of the case.

Unidentified Justice: Well, you don't really know.

He may have... he may have started out with a completely different opinion and other people said please change it and we'll join it.

Mr. Olson: Well, as a matter of fact, Justice White, he testified at his deposition, which is a part of the material before the Court--

Unidentified Justice: That that didn't happen.

Mr. Olson: --That... well, he started out to write a dissenting opinion.

Unidentified Justice: I know.

Mr. Olson: And then sometime shortly before the final decision, that opinion became the majority opinion of the Court.

Unidentified Justice: Well, it may have because he changed it.

Mr. Olson: I suppose that inference is possible.

The inference which is quite strong from reading that transcript of the deposition is that that is not what happened.

Another aspect of that facts--

Unidentified Justice: In any event, it was five to four, wasn't it?

Mr. Olson: --The decision was five to four, yes, Justice Blackmun.

The other aspect of the facts of the case which it seems to me are important for the Court to understand as it considers this case is that while the Alabama Supreme Court, the jury in Alabama and the Alabama Supreme Court reached a conclusion that there had been a bad faith failure to pay an insurance claim in this case, it was not the policies of Appellant that brought about that conclusion; it was deviation, unauthorized deviations from those policies that led to the conclusion that there had been bad faith failure to pay an insurance claim.

I would like to speak--

Unidentified Justice: Well, was this the first case in which, the Alabama Supreme Court had laid down the principle it followed here?

Mr. Olson: --Well, that question is complicated because there are several principles that are articulated here, Justice Brennan The Alabama Supreme Court had first accepted the doctrine that there could be a tort claim and a claim for punitive damages for bad faith in 1981.

We stress in our brief, and we stress in our argument that that was four years after the conduct here.

The decision in this case follows the precedents established in 1981 in Alabama, but there were changes in the law, we contend, and we have discussed those in detail in our briefs, in the decision of the Alabama Supreme Court in this case.

As the Court is aware, the major issue in this case is the question of punitive damages and the extent to which this Court under the Constitution of the United States has the power to limit under the Eighth Amendment particularly, and also under the due process clause of the Fourteenth Amendment the power to limit punitive damages.

Before I discuss the constitutional application particularly in the context of the Eighth Amendment to punitive damage, I would like to go over some of the characteristics of punitive damages which have been pointed out and, I believe, agreed to by his Court in various opinions of this Court virtually without dissent.

One of the characteristics of punitive damages which is most important to this discussion is that... and this is in the words of Justice Marshall in dissenting in the Rosenbloom v. Metromedia case, but the same language has been picked up by other... in other opinions of this Court, particularly in the Gertz case and in the Faust case, punitive damages serve the same function as criminal penalties and are in effect private fines.

That phrase "private fines" particularly has been approved by this Court in several different ways in several opinions of this Court.

There is really no question that the purpose for punitive damages are to... is to punish and deter.

The purpose again of punitive damage is to prevent or deter or punish perceived antisocial behavior through fines.

Secondly, punitive damages are windfalls.

They are entirely extracompensatory.

In a sense, they are like a lottery.

Three, punitive damages are awarded virtually without standards.

This again... these are propositions which have been articulated by this Court.

There are no legislative guidelines, or virtually seldom are legislative guidelines.

There are no restraints built into the system on the passion or prejudice of the jury.

In fact, as this Court has noted, punitive damages may be used to punish unpopular defendants.

It is the one area of the law in which passion and prejudice seems almost to be encouraged by the process.

Unidentified Justice: Doesn't the very term carry that with it?

Mr. Olson: It certainly does, and as we have seen, the fact that the punitive damages themselves are for the purpose of punishment and deterrence, and that the juries are instructed that they virtually have no discretion, if the jury is angry at the defendant, or if the jury is angry at the defendant irrespective of the conduct that may have occurred in the case, this is an opportunity for them to punish the jury... punish that defendant.

Unidentified Justice: Well, was that the substance of the charge to the jury in this case?

Mr. Olson: The substance of the charge to the jury in this case... and there's a reference in our reply brief to the page at which that appears in the record... is that punitive damages were for the purpose of punishment and deterrence.

The trial court went on to say that punitive damages are primarily in the discretion of the jury and then concluded that very brief statement by saying it is up to the jury to reach a judgment with respect to how much the punitive damages ought to be, bearing in mind the consideration of punishment and deterrence.

Unidentified Justice: Was there any analytical treatment or discussion in connection with the efforts to reduce the punitive damage in the trial court?

Mr. Olson: There was an application to reduce the punitive damages in the trial court.

The trial court, of course, already had been of the view that punitive damages were primarily in the discretion of the jury.

Again when the subject came up in the Alabama Supreme Court, the subject was quite fleeting and reflected, it seems to me, the very point that I made and that has been made by this Court.

There are very few, if any, standards.

Those standards, if they exist, are totally discretionary.

Another characteristic of punitive damages which has been mentioned by this Court is that while they serve the criminal law function.

they are awarded in amounts generally far higher than crimes for comparable criminal conduct, and I might add that the English courts have particularly made this point and focused on it as well that while we decide that certain conduct is sufficiently reprehensible that it must be subject to standards adopted by the legislature and punishments adopted by the legislature, in the area of punitive damages without the benefit of legislative standards and without the benefit of clear standards with respect to the amount of the award, the punitive damages, and for less reprehensible conduct, at least inferentially because the legislature hasn't decided to punish that conduct, the awards themselves are much higher and we award punitive damages without any of the protections which we afford to the more reprehensible crimes that we treat in our courts.

The fifth characteristic... I've mentioned four that are generally applicable to punitive damages across the board.

The fifth characteristic is that here there is peculiar to this case, although not necessarily exclusive to this case, it is here that the punitive damages were awarded for violating a standard not created until four years after the conduct which was being judged by the punitive damages.

It is contrary to the traditional notions of due process to punish conduct which does not violate a known standard, and yet in this case punitive damages were awarded for a standard which was not known at the time of the conduct engaged in.

Unidentified Justice: Mr. Olson, none of these arguments were made before the petitions for rehearing, is that right?

Mr. Olson: That is correct, with respect to the discussion generally of the characteristic of punitive damages and discussion of the quality of excessiveness in this case, of course, were.

We are... and these arguments are not so much in the form of arguments but statements of the characteristic of punitive damages which have been accepted and adopted by this Court.

The argument that we are making that they are governed by the limitations of the Eighth Amendment was not made prior to the petition for rehearing--

Unidentified Justice: And of course, we do have to look at what this Court said in Exxon Corporation v. Eagerton about the general rule of the Alabama courts.

Mr. Olson: --I think that that can be... yes, of course.

I think that that footnote in that Exxon case can be explained by the fact that the preemption issue, which was the issue which was being considered in connection with that footnote, was something which had not been briefed and fully developed in the record in the Alabama courts below, so there is a separate prudential reason for this Court not to consider it.

And we looked through the briefs in that case to see whether the litigants had actually briefed the Alabama practice prior to the decision in that case that generated that footnote, and we found that they had not.

We have brought to this Court's attention somewhere between 35 and 40 cases which establish a difference in the Alabama practice which is not fully reflected in that footnote.

Unidentified Justice: Are you relying significantly on the disqualification aspect?

Mr. Olson: With respect to--

Unidentified Justice: Of Justice Embry?

Mr. Olson: --Before this Court, we certainly are.

Unidentified Justice: Well, you haven't, you haven't gone into that yet.

Mr. Olson: I haven't addressed that.

I would like to address the question of the application of the Eighth Amendment to punitive damages, but I certainly--

Unidentified Justice: Now, also tell us how we reach that sort of a question in a state court.

Mr. Olson: --The Eighth Amendment question, Mr. Chief Justice,--

Unidentified Justice: Well--

Mr. Olson: --or the application of the disqualification?

Unidentified Justice: --Judge Embry's participation.

This is... if this were a federal district judge or a Court of Appeals judge, we would have quite a different question, wouldn't we?

Mr. Olson: Yes, except that I think that under the circumstances here, the Court has the same power that it might have in the federal courts.

We think that--

Unidentified Justice: Supervisory power?

Mr. Olson: --No, that this... under the due process clause of the Fourteenth Amendment, as this Court has pointed out, the justice, the appearance of justice is absolutely necessary to justice itself.

We have a situation here which regrettably involves conduct which is far beyond the standards that this Court can tolerate, and due process requires a fair hearing before a fair tribunal.

Appellant in this case did not have a fair hearing before a fair tribunal because one of the justices in the tribunal which judged him, in fact a very influential justice because he was the one that wrote the Court's opinion below, and it was a five to four opinion, was at the same time, this case was under submission before the Court and being argued before the Court, bringing his own personal action for bad faith punitive damages against another... a group insurance company in Alabama.

Furthermore, he was a fiduciary, it was a class action.

He was bringing that action on behalf of all public employees covered by the Blue Cross program in Alabama, and in fact, as it turns out, as we suspected, we don't know all of the facts; we presume that the other Justices in the Alabama Supreme Court were members of the putative class.

All we know is that two members, including the Chief Justice of the Alabama Supreme Court, as soon as this fact was brought to its attention, the Chief Justice of the Alabama Supreme Court and one other Justice immediately indicated that they would withdraw from the putative class.

Unidentified Justice: Well what precisely is your claim that Judge Embry should have disqualified himself, not under Alabama law but under some constitutional principle?

Mr. Olson: Yes.

The constitutional principle that a litigant is entitled to a fair hearing in a fair tribunal, that the appearance of justice is essential to the provision of justice itself.

Unidentified Justice: Well, okay, but what was unfair about Justice Embry's participation in this case?

Mr. Olson: Well, he had a direct interest in another case in which the same legal issues were being raised, for one.

Number two, he was bringing a class action based upon the same cause of action in the Alabama courts where he was representing other public employees, including--

Unidentified Justice: And your theory is that because he was a Justice of the Supreme Court of Alabama, which has a lot to say about different branches of the law in Alabama, he shouldn't have sat in any case involving an area of the law in which he himself had a lawsuit pending?

Mr. Olson: --Well, particular... well, I don't know whether I would go quite that far, Justice Rehnquist, but this--

Unidentified Justice: If that's the principle, no state supreme court justice can ever file a suit on his own behalf.

Mr. Olson: --This was a case involving important and new and obviously hotly contested legal issues in the Alabama Supreme Court.

The prior... the highest prior affirmed judgment in a bad faith insurance context case in Alabama was $100,000.

This case changed the stakes in Alabama by a factor of 35 times.

He was not just a litigant; he was a class action litigant.

He was representing all public employees of the State of Alabama, including his colleagues on the Court.

He had direct stake in the legal issues that were being decided by the Alabama Court, and the amount of the judgment which he was affirming, plus, as indicted by, his deposition... and you can't, cannot read his deposition, I submit, without seeing an overwhelming sense of hostility and bad... bias towards insurance companies and bad faith--

Unidentified Justice: I just don't read that deposition that way.

Certainly he expressed tremendous dissatisfaction with Blue Cross in Dis own case, but it seems to me the deposition gives the impression that he was going to treat insurance companies on the basis of how they treated him, that he would be, you know, as a claimant, if the company treated him well, he wasn't a litigant, litigation prone person.

Mr. Olson: --Well, he filed two bad faith actions in... while the Lavoie case was pending before him, he field two actions, one of which was a class action.

He had indicated in his deposition that several other times he had considered or threatened suing insurance companies, and it seems to me that irrespective of your... you may read that deposition differently than I do.

It seems to me that it's very clear that he had very strong feelings about insurance companies, but even if he didn't, even read another way--

Unidentified Justice: Now, certainly the fact that a Justice of a state Supreme Court has strong feelings about insurance companies cannot possibly disqualify him from sitting in insurance cases in the Supreme Court, can it?

Mr. Olson: --No, I think that they were... I would not go that far, Justice Rehnquist.

Unidentified Justice: I would hope you wouldn't.

Mr. Olson: These opinions were much more clearly focused on bad faith claims, punitive damages--

Unidentified Justice: Well, Mr. Olson wasn't Judge Embry in a position where his decision here was going to have a bearing on whether he got money in his pocket in the cases that he had brought?

Mr. Olson: --Absolutely, Justice Brennan.

His decision in this--

Unidentified Justice: Incidentally, Monroeville was a state court, wasn't it?

Mr. Olson: --It was Jefferson--

Unidentified Justice: What--

Mr. Olson: --It was Jefferson County where his class--

Unidentified Justice: --No, no, I am talking about our decision on Ward v. Monroeville.

Didn't that involve a state judge?

Mr. Olson: --I believe it did, I believe it did.

Unidentified Justice: And wasn't that... didn't that go off on a due process analysis?

Mr. Olson: Oh, yes it did.

This is a very unfortunate situation because, as I say, the decision in this case affirmed, a $3.5 million punitive damage judgment.

The highest previous award had been $100,000.

that does, if... for anyone who has handled class action cases, it changes the takes enormously.

Furthermore, the complaint in his Blue Cross case was... involved the same issue of whether partial payment would be a defense, which was a hotly contested issue in the Alabama Supreme Court in the Lavoie case.

It also involved questions of delays in payment and whether that alone would cause... create bad faith.

The due process standard--

Unidentified Justice: Well, were these issues on which the Supreme Court of Alabama divided in this particular case?

Did the dissenting Justices disagree with Judge Embry's interpretation of Alabama law?

Mr. Olson: --The... yes and no.

The issues that divided the Court both covered that and didn't cover... did not cover that.

The issues are somewhat refined, and it's very difficult to extract that since they weren't focusing on specifically tvin, it in with his case.

I submit that the test has been, as articulated by Justice Black in the Murchison case, whether the appearance of justice is being served, and that is what we have to talk about in connection with the due process issue, and the test there is whether an objective person, aware of all the facts, would have legitimate doubts, serious doubts, significant doubts about whether or not the litigant before that tribunal would have a fair hearing.

I submit that there really can't be any doubt in this case.

I would like to return to the issue of the Eighth Amendment.

It is not an issue that has been--

Unidentified Justice: Before you leave the due process issue, assume we found merit in that and nothing else, just to get my question on the table.

What would the appropriate relief be?

Mr. Olson: --The appropriate relief would be to remand this case to the Alabama court system with an instruct--

Unidentified Justice: Well, which part of the Alabama court system?

Mr. Olson: --It would have to go back to the Alabama Supreme Court, I submit.

There is a statute in Alabama which would allow the Governor to replace members of the Alabama Supreme Court, and it is a statute which has been used before, Justice Stevens, to replace... when there's been disqualifications, the statute specifically refers to the question of disqualification to allow the Governor to replace members of the Alabama Supreme Court, to bring the number up to seven.

We are challenging not just Justice Embry, who is not any longer a member of the Alabama Supreme Court, but the other justices who did not do what the Alabama Chief Justice did while the case was pending before them, and when they found out that they were apparently members of a class, did not act to withdraw themselves from the class.

While they went on to decide the issues in this case, we think that the due process issue requires a court which is not so stigmatized.

Unidentified Justice: But does the... is your conclusion on the due process issue that the judgment of the Alabama Supreme Court is void?

Mr. Olson: Yes.

Unidentified Justice: Then is not the effect of that to allow the district court judgment to stand, which would affirm?

Mr. Olson: It wasn't... there was not district court judgment... well, there was a trial court judgment.

Unidentified Justice: A trial court judgment, yes.

Mr. Olson: No, I think that Alabama law entitles these litigants to an appeal, and--

Unidentified Justice: Does federal law entitle you to an appeal?

Mr. Olson: --The Alabama law entitles--

Unidentified Justice: I'm saying does federal law?

Do we have any power to command that you be given a right of appeal?

Mr. Olson: --I'm not sure that I can answer that, but the state law does provide an avenue for appeal.

The appeal process which afforded to the Appellant was tainted here.

The appeal process is still available, and there is a statute which would allow the Court to be recomposed in a way which would not have the problems presented by the due process clause as they exist today.

Unidentified Justice: Do we have any authority to enforce that statute?

Mr. Olson: You can remand the case to the Alabama Supreme Court--

Unidentified Justice: You're willing to take your risk if you get the judgment vacated.

Mr. Olson: --Well, we feel very strongly that the Court should go on and decide the other constitutional issues which are here and are properly before the Court.

The Eighth Amendment issue particularly is extremely important.

We have demonstrated in our briefs that punitive damages--

Unidentified Justice: But should we decide these issues before they've been decided by a properly constituted Alabama Supreme Court?

Mr. Olson: --We believe that in this... in this circumstance, as we discussed at some length in our brief, this is an appropriate case in which to do that, particularly--

Unidentified Justice: On an appeal from a void judgment.

It seems to me you... we either have a judgment that we can review or we don't, and your suggestion on the due process argument is that there really is nothing worthy of review.

Mr. Olson: --There's a, there's a, there's an appropriate, there's an appeal because the tribunal which the Appellant was before did not provide the Appellant with the proper due process to which the Appellant is entitled, and therefore, the decision of that court must be reversed.

I do not think that means that the other issues that come with the appeal are... all of a sudden disappear.

They are appropriately here before this Court.

Unidentified Justice: Well, the court didn't give you a fair hearing on those other issues?

Mr. Olson: Yes, those are... these are--

Unidentified Justice: Those are the only other issues there are.

Mr. Olson: --I... we concur with that.

On the other hand, these are appropriate issues, and the prudential considerations?

which--

Unidentified Justice: Well, then, it shouldn't... if you want to submit them, you shouldn't have brought your due process question here.

Mr. Olson: --It was... it was extremely important, of course, Justice White, for us to present all of these issues to this Court because they all involved a denial to this, especially in the cumulative effect, a denial to this Appellant over not fair opportunity not only to be heard by the Court, but the substantive, denial of federal constitutional rights in connection with the Eighth Amendment area and the contract clause area particularly.

Unidentified Justice: Plus, we didn't limit our note either, did we?

Mr. Olson: No, you didn't.

Unidentified Justice: Mr. Olson, is there any evidence in the record that any of the other Justices know about the class action before issuing the opinion on the merits in this case?

Mr. Olson: There is no evidence.

Unidentified Justice: They had to know about it.

Mr. Olson: The only... we can only draw inference from the fact that we brought this issue to the attention of the Alabama Supreme Court--

Unidentified Justice: After the opinion issued.

Mr. Olson: --After the initial opinion because--

Unidentified Justice: Yes.

Mr. Olson: --my client, the Appellant, didn't know it either.

When we did bring that to the Alabama Supreme Court's attention, two of the Justices in the opinion which is before you indicated an intention to withdraw from Justice Embry's class.

The other six Justices did not.

I do not know... I would think it would be unfair to draw any inferences.

I think that some factual investigation would have to be undertaken.

We pointed out in our briefs that the language of the Eighth Amendment does not preclude its application in a case such as this.

This Court has itself referred many times, as I have stated, to punitive damages as private fines.

The legislative history, as we pointed out, indicates that the Eighth Amendment was discussed and debated immediately after the Fifth Amendment where concern over the possible application of the self-incrimination provision of the Fifth Amendment was raised and in order to limit it to criminal cases, the word "criminal" was put in the Fifth Amendment for that purpose.

We have demonstrated, because of the underlying purposes of punitive damages, that by any purposive analysis, the Eighth Amendment ought to apply to punitive damages, and we have demonstrated historically that under... there is almost a direct lineal tracing of the Eighth Amendment excessive fine clause back to Magna Carta, the English Bill of Rights, the Virginia Declaration of Rights, and that Plackstone in his discussion of these... of punitive double and treble damage cases talked about both the civil fines and the criminal fines in similar contexts.

I think it is important to me, before I stop, to discuss what we think is an important consideration, what standard the Court would have to apply in terms of determining proportion... what was excessive.

The Eighth Amendment speaks in terms of excessive fines.

That word, as this Court has suggested, and I think is obvious, connotes proportionality, particularly when we are talking about the excessive fine provision as opposed to the language used in the cruel and unusual punishment provision, the word excessive obviously connotes proportionality.

We submit, and as I mentioned before, the Eighth courts have considered this, that there must be... our whole entire criminal system is based upon the supposition that the punishment must fit the crime.

That which we use to punish must be in some way proportional to the damage which is done.

So it is a fundamental consideration that in determining what is excessive, that the amount of the damage be done, be considered.

The common law and legislative standards of treble damages and double damages is of long standing.

Here we have something that is 700 times greater than treble damages.

We submit that is completely out of proportion.

To the extent that it is appropriate, as we think it is, in determining what might be excessive, to look at the criminal law... criminal law analogue in Alabama or in other states, if there is no analogue in Alabama, the punishment for the conduct here would have been $3000.

And finally, and most importantly, in 1981, in the same year that the Alabama Supreme Court was recognizing the bad faith punitive damage cause of action, the Alabama legislature itself passed a statute which is mentioned in our briefs and discussed which recognizes the right of an individual to recover against an insurance company one and one half percent per month for failure to pay an insurance claim.

Those three standards, double and treble damages under the common law and under legislative in Alabama and elsewhere, the criminal law analogue, and the actual Alabama legislative judgment in this case that one and one half per month is an appropriate penalty we submit is a paper standard for excessiveness.

If it please the Court, I would like to reserve the balance of my time for rebuttal.

Chief Justice Burger: Mr. Goodman.

ORAL ARGUMENT OF JACK N. GOODMAN, ESQ. ON BEHALF OF THE APPELLEES

Mr. Goodman: Mr. Chief Justice, may it please the Court:

What I believe is particularly important in understanding this case and which Appellant generally ignores are the egregious Facts on which it is based.

The record does not disclose a mere failure to honor a claim by a lower level person at the Aetna office in Alabama, but instead shows a pattern of misconduct not only the officials in its Alabama office, but also senior officials in its home office and its medical department, and this misconduct continued on for years and extended not only through the period before this suit was filed, but also continued on and resulted in the filing by Aetna of several affidavits which proved to be false in an effort to obtain summary judgment from the Alabama trial court.

And Aetna recognizes, this Court must accept all those findings as fact, and indeed, in response to a question, no Justice disputed the characterization of the majority opinion of the Alabama Supreme Court, and in fact, Chief Justice Torbert's dissenting opinion specifically agreed with the characterization of the facts in the majority opinion.

The Alabama courts gave very long and very careful consideration of the issues that arise here, both in this case and in earlier cases, and as this Court held in Martinez v. California, the interest of state in defining their own tort law is paramount and is not a matter of constitutional dimension.

This suit was filed in 1978, and over the next six years reached the Supreme Court of Alabama three times.

At no time during that a period was there ever a mention of any federal issues.

The first mention of any federal issues came at the very end of the Alabama litigation, and even then it was not timely raised, for Aetna's application for rehearing raised no constitutional issue, and the first constitutional issues were raised only a week later in a brief supposedly in support of that application.

And while Aetna now claims that it need not have a brief which hews to that application in Alabama, it did file, attempt to file an amendment to its application to raise the issues.

Further, when it did raise them, it did not raise them in compliance with Alabama procedure, for the Alabama courts have long held that they will not consider allegations, particularly constitutional arguments, which are not supported by case authority, and an examination of the brief of Aetna in support of their applications for rehearing will show that absolutely no cases were asserted, that it was a mere generalized allegation that the punitive damages award and the Alabama affirmant statute were unconstitutional.

Unidentified Justice: What if your claim is so novel there aren't any cases to support it?

How do you comply with that rule?

Mr. Goodman: Well, in this case, Justice Rehnquist, they seem, at this level, in this Court, to have found a number of cases which they claim support it, so you might... in a completely novel argument in which there were no relevant cases, you might have an argument, but it appears that that would not apply here.

Unidentified Justice: Has there ever been a case in any court in the United States, state or federal, presenting this kind of disparity between the actual injury and the punitive damage award?

Mr. Goodman: Chief Justice Burger, we do not agree with the characterization of the disparity between the punitive damages award--

Unidentified Justice: Isn't there a disparity between there two figures?

Mr. Goodman: --That is only if you accept the $1650 a the sole damages in the case, but you have to remember this was a tort case, and tort damages are not limited by contract amount, and there are other damages which are included, and they are for mental anguish and economic dislocation, and those, as the Alabama Supreme Court found in the Gulf Life, case are included within the general punitive damages amount, and indeed, the charge here which was not accepted to by the--

Unidentified Justice: And your position is that--

Mr. Goodman: --By the appellate--

Unidentified Justice: --Your position is there can be no limit on that kind of a punitive award, though.

Mr. Goodman: --There is no direct constitutional limit which sets a particular number one way or another--

Unidentified Justice: What if it was $30 million instead of $3 million?

Mr. Goodman: --Chief Justice Burger, if there were a case in which there was an absolute absence of protections below, in other words, of there seemed a... if the evidence showed that all the trial courts in the state and the Supreme Court in the state were bent on destruction of a company and the amount was completely out of line with amounts for any similar action anywhere in the United States, presumably due process would apply.

But none of that is true here.

This amount is not entirely unusual, given the size of awards in other courts for the sort of conduct that has occurred, and you also have to remember the particularly egregious conduct.

The Alabama Court has only found, has only affirmed a judgment of bad faith in four cases of the almost 40 that they have considered since this Court--

Unidentified Justice: Any of them anywhere near like this one?

Mr. Goodman: --The next largest one I believe was $1 1/4 million.

None were quite this high, but as even several of the Justice indicated, none has had quite this level of misconduct.

To return briefly to the jurisdiction issue, as Justice O'Connor mentioned, in Exxon v. Eagerton, the Court recognized that the Alabama practice is not to consider issues first raised on a rehearing.

And the cases which Appellant cites do not show a different practice.

To take one example, in Kirkland v. Kirkland, which we cited for the proposition that Alabama courts will not consider arguments first raised on appeal, that is precisely what the Court said there.

Now, they did go on to consider the issues, and found, and would have found in favor, indicated that their judgment would have been in favor of the applicant for rehearing but did not apply it in that case.

It was mere dicta, and suggested if the case came up again, that would be the view the Court held.

Similarly, in Lovett v.... in Stover, I'm sorry, the Court also said that it was their very clear policy that they would not hear cases that... hear issues that were first raised on rehearing, and while no doubt there are some cases in which they have done so, that is certainly appropriate that it is within the Alabama Court's power to hear the case, to hear an issue first raised on hearing, based on their general power to amend their judgments sua sponte during the term of Court in which they are issued, but that does not indicate an obligation on their part to hear issues which are untimely raised, nor does it indicate that these few cases exist in the absence of established practice, which is what they sat they have, to not hear cases raised.

In fact, in the Orr case this Court recognized specifically that while the Alabama Court had considered an untimely argument there, the Court was free in another case to not consider that argument, and the Court strongly suggested there that that would preclude this Court's jurisdiction.

It has been held consistently by this Court for almost 200 years that failure to timely raise a federal issue in state proceedings precludes this Court's jurisdiction.

And that conclusion should be applied here, and we submit that this case should be dismissed.

Turning to the arguments concerning Justice Embry, the practice of this Court, which is the same practice as has been endorsed by the ABA for appellate courts in the states, is to generally entrust the decision on disqualification of a judge in an appellate court to that judge, and that is the practice which the Alabama court followed here, so that the Court itself did not consider that federal issues were raised.

Unidentified Justice: Yes, but there must be a limit to that.

There certainly is on the federal side in the canons of federal judges.

Mr. Goodman: Well, there are canons, and the canons... the canons of judicial conduct do apply in Alabama, but the ADA, Justice Blackmun, in considering the proper procedure, concluded that the best practice, particularly given the controls that were available from the fact that they were collegial courts and there were other justices or other judges, would be to leave the matter to the individual judge.

I would suppose, and we would not disagree, that there may be a case of a complete abuse of discretion where this Court could step in and apply constitutional standards and indicates that there had been a complete absence of the exercise of discretion.

Unidentified Justice: Of course, the opposition will say that this is that case.

Mr. Goodman: Well, we would argue that it is not because--

Unidentified Justice: Did Justice Embry accept payment in settlement of his cases?

Mr. Goodman: --It appears now, Your Honor, that he did, that there was a payment of $30,000 which Blue Cross indicated their belief was to compensate him for his legal fees in bringing the case.

Unidentified Justice: So that he did not personally, you say, realize a penny.

Mr. Goodman: The record is unclear, intelligence.

Unidentified Justice: Well, what is the fact?

What is the fact, do you know?

Mr. Goodman: The fact is he received $30,000.

The facts are that Blue Cross... the internal Blue Cross documents indicate that they believe that payment was in compensation for his legal expenses.

Whether that was so or not, I don't know, Your Honor, and I believe the record indicates.

Unidentified Justice: When was it settled?

Mr. Goodman: The case was settled in late April of this year.

Unidentified Justice: So that at the time this case was litigated, at least he was asking for more.

Mr. Goodman: Yes, that's correct.

He was... he was asking on behalf of a class for considerably more money.

Unidentified Justice: Is Justice Embry still sitting as a member of the Court?

Mr. Goodman: No, Your Honor, he is not.

He is retired, and I understand that was for health reasons.

Unidentified Justice: Do you know his age?

Mr. Goodman: I believe he's in his mid to late 60s, Your Honor.

As counsel for Appellant stated, the interest that Justice Embry had here was not an interest in this case, but--

Unidentified Justice: Before you go on, let me interrupt you to ask another question.

You indicated, I thought, that at some point, a reaction on a punitive damage might get to the point where it would, whether shock the conscience or what.

What point would that be in something over $3 1/2 million here?

Mr. Goodman: --Your Honor, we would not suggest that it is a question of the amount of the damages, but--

Unidentified Justice: Well, I thought you had.

Mr. Goodman: --No, I believe, Your Honor, it was a question of if the characterization of the entire procedure below was such that it was an absence of due process, that it seemed a campaign of harassment or destruction, we would agree that an egregious amount would... an amount, say, for example, which would destroy a company or destroy an individual, might raise a due process issue.

But we have nothing like that either in terms of the absence of careful procedure here or in terms of the size of the judgment given the size of the defendant in the case.

Unidentified Justice: Well, was there any evidence introduced in this case showing what would be the impact on the insurer here?

Mr. Goodman: I don't believe there was, Your Honor.

Unidentified Justice: Well, then, that isn't really a factor, is it?

Mr. Goodman: No, Your Honor, but I believe it would be a question for this Court in order for it to determine that there had been, we would suggest this sort of campaign of harassment.

Unidentified Justice: Let me test, let me test that out, if I may.

Suppose this award had been not $3 1/2 million or $30 million but $350 million.

Does that get to the point where some shock factor comes in and a federal court could intervene when it couldn't at a lower figure?

Mr. Goodman: We would again argue that the mere dollar size in itself could not be enough, but we would also suggest that an amount that was that high would indicate that there were... there was an absence of other procedures, an absence of the sort of care and consideration which properly was given.

Unidentified Justice: An absence of rationality.

Mr. Goodman: That's correct, and in that case, even in Martinez, although the Court suggested in Martinez that the state's interest in its tort law is paramount, and we hold to that very carefully, it indicated that in a case where there was a completely irrational judgment, invading the rights of a person, that the Court might step in.

But that would be a very limited instance.

And this case did not present such an instance.

The point about Justice Embry is that he was not sitting in his own case.

He... the federal disqualification statute which need be considered stricter than the federal--

Unidentified Justice: Well, tell me, Mr. Goodman, you say he was not sitting in his own case.

Did not the principle he laid down in this case help suits he had brought against Blue Cross?

Mr. Goodman: --No, Justice Brennan, it did not because he laid down no principle in this case.

In this case the opinion of the Court is replete with statements that he is relying on the unique facts of this case and saying in this case, the two particular aspects which--

Unidentified Justice: Well, what about, what about... I thought that... I think it's been suggested that the first time this tort was recognized by the Alabama Supreme Court, at least, was in 1981?

Mr. Goodman: --That is correct.

Unidentified Justice: But that was applied here.

Mr. Goodman: That is correct.

Unidentified Justice: But by a vote of five to four.

Mr. Goodman: That is also correct.

Unidentified Justice: And would that not help his own suit against the--

Mr. Goodman: Not in any direct sense.

Unidentified Justice: --Direct or indirect, wouldn't it help it?

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

It, the mere fact that there was a judgment in one case on one set of facts which particularly rests on those unique facts and the unique pattern of misconduct has no direct bearing on the question in another case of whether there will be a judgment.

Unidentified Justice: Well, if it did help his case to the extent of putting money in his pocket, then did he not have a personal interest in this case?

Mr. Goodman: The general holding on disqualification cases has been that the mere establishment of a pattern of law, in other words, the setting up of the law which might later benefit the judge in another case is not disqualifying, but the judge's interest must be direct and immediate in the case at bar and not in some other case, and not in the development of a law in a way which might ultimately benefit him.

Unidentified Justice: I have... go ahead and finish.

Mr. Goodman: For example, in the Department of... in the case in the Temporary Emergency Court of Appeals, DOE v. Bremmer, which we argue in our brief, there the evidence was very clear that the judge in question owned stock in oil companies which had investments identical to the ones in front of him, and that his decision would affect the value of those companies one way or the other, and the Court held, applying federal statutory standards again, that that was an interest that was too remote and too speculative, and that the interest under the federal statute, and again, a stricter standard than the Constitution applies, had to be direct and in the case at bar.

Unidentified Justice: You referred to... at least I got the impression you said that there was no principle laid down by the Court in establishing or affirming this $3 1/2 million penalty.

What principle would you say that the proposition rests on?

Mr. Goodman: Your Honor--

Unidentified Justice: What is the principal basis of the Court's holding?

Mr. Goodman: --Chief Justice Burger, the Court applied the principle it had established in the Chavers case and thereafter which indicated that a bad faith denial of claims by an insurance company will give rise to a tort action which may result in punitive damages.

The two issues this Aetna has argued were... in which Alabama law were changed were a statement in earlier cases that as a general matter, a partial payment of an insurance claim would preclude a finding of bad faith, and second, that in order for bad faith to be shown, the plaintiff must establish that on the contract claim he would be entitled to a directed verdict.

And in both of... and in both of those instances, the Court previously had not established an absolute rule but merely a general presumption, rebuttable on showing of specific facts, and that characterization of the previous cases is not one only of the majority opinion, but was the unanimous holding of the Court here for both dissents agreed with the majority opinion on both those issues which were the two ones which Aetna has argued would have benefitted Justice Embry in his case.

Unidentified Justice: Now, in criminal cases I suppose you would agree in Alabama, judges must instruct particularly on a capital case on the factors which must be taken into account, that this Court has laid down, is that not true?

Mr. Goodman: Yes.

Unidentified Justice: Was there any limiting principle given by way of instruction here?

Mr. Goodman: In the Court's opinion or in the trial--

Unidentified Justice: In the trial court.

Mr. Goodman: --In the trial court.

As far as the punitive damages, they were charged, in addition to the matters in which Mr. Olson described, they were also charged with respect to the Gulf Life standard, which indicated that they should take into consideration the economic dislocation and the mental anguish which the Lavoies had suffered.

There was substantial evidence in the record that the Lavoies had been pursued rather mercilessly by the hospital in order to make this payment and were unable to do so.

Finally, with respect to Justice Embry, his voting record in other bad faith cases shows that he was not acting out of his own interest for in the vast majority of cases that he sat on during the time when his suit was being prosecuted, he voted in favor of the insurer, including three times on the identical directed verdict standard which the Appellant argues he had set out to change.

And so there is little reason to believe on this very scanty record that he had any interest and he was doing anything improper.

But where, but to the contrary, where Blue Cross was a party before him, i.e., the party against whom he was suing, he very carefully recused himself, and that occurred only two weeks after the decision in the case at bar.

Unidentified Justice: In any of the three cases in which he voted against the insurance company, would his vote have made a difference?

Mr. Goodman: I'm not certain, Justice Stevens.

Unidentified Justice: But in this case he did throw his weight around.

Mr. Goodman: Well, he did write--

Unidentified Justice: He started out with a dissenting opinion and ended up with a majority.

Mr. Goodman: --That is correct.

Unidentified Justice: That shows some movement.

Mr. Goodman: Well, that's true, but of course, it also shows that he convinced four other justices, and as I have said, Justice Marshall, the dissenting justices did not... two of the dissenting justices did not disagree with the characterization of the case at all, and the other two... and that remains only two, and they basically indicated that they had a dispute as to the weight of the facts.

But the legal judgments that he reached were not disputed by any of the justices of the Alabama Supreme Court.

So that is... that simply did not occur.

Turning to the Eighth Amendment and the punitive damages issue, the Eighth Amendment argument which Appellant raises is squarely rejected by this Court's holding in Ingraham, and in that case the Court carefully mined the history of the Right Amendment and found, for example, that the English Bill of Rights, which Appellant relies on, that it was clearly intended to apply only to criminal cases and that the conjunction of fines, excessive bail and cruel and unusual punishment indicated an intent to restrict the applicability of the amendment to criminal cases.

And this Court has held that in the absence of the criminal process and the indicia of the criminal process, there is no application of the Eighth Amendment, and there is no such indicia here.

This case was a purely civil case and handled in a purely civil manner.

It is clear, therefore, that all punishments are not within the scope of the amendment, and this punishment is not one of them.

Nor did this award offend due process in any manner.

Contrary to Aetna's argument that it had no notice of the substantive conduct which it was expected to adhere to, Alabama has held for many, many years that insurers have a fiduciary duty with respect to their insured, so that substantive conduct, good faith towards towards the insured was already a duty.

The only thing that was added in 1981 was a tort action to recover for breach of that duty, that the Court had long held that a... that insurer's did have that fiduciary duty, and there is no construction of Alabama law which would have supported the type of misconduct which fills the record in this case, the repeated lying to claimants and failure to follow internal company procedures.

Aetna's arguments here were head by the trial judge on motions for new trial and remittitur, and by the Supreme Court of Alabama, and that is the court which is most able to and properly should under our constitutional scheme determine what the standard for--

Unidentified Justice: Wasn't that the one in which there was a big remittitur of $1 million?

Mr. Goodman: --There was a previous award which was reduced from, I believe, $1 million to $100,000, but there has been one of, I believe, $1 1/4 million.

Unidentified Justice: Since this case.

Since this one, is that what it is?

Mr. Goodman: Since this case, I believe... well, I believe that decision came out shortly after this case.

Unidentified Justice: But at the time of this decision there had been none over $100,000?

Mr. Goodman: None which the Court had affirmed for over $100, 000, that's correct.

Of course, in other states there have been awards not substantially different from this, and of course, many of these awards are reduced in appropriate circumstances by remittitur or on appeal and that is the protection which is generally afforded to litigants.

The rule proposed by Aetna would essentially vitiate the development of the common law process in the states because it would suggest that there could be no new common law duty attached except prospectively, which would essentially preclude anyone from seeking a new remedy because it could not benefit them.

It would also, the rule that they propose which would allow this Court to freely consider the amount of punitive damages as a constitutional matter, would flood this Court with new litigation, for there is, and Aetna has suggested none, no federal standard which is different from the excessiveness standard which is already applied by every state court.

So we believe that this case should be... the issues in this case were properly handled by the Supreme Court of Alabama, and they are properly left to the discretion of the state courts.

If there are no further questions, thank you.

Chief Justice Burger: Do you have anything further, Mr. Olson?

ARGUMENT OF THEODORE P. OLSON, ESQ.

ON BEHALF OF THE APPELLANT... Rebuttal--

Mr. Olson: Just a couple of brief points, if I have the time, if it please the Court.

In the first place, Mr. Goodman suggested that the jury was instructed differently than the jury was instructed.

The instructions on punitive damages begin on R-588 and go over to R-599.

There is an instruction available in Alabama for compensatory damages, aggravation, humiliation, whatever it might have been.

This jury was instructed that punitive damages were for the purpose of punishment and deterrence.

That was the instruction given the appellant.

Justice Embry called these punitive damages.

He refers to the amount of $3.5 million as punitive damages, not compensatory damages, in the first page of his opinion for the Court.

The Appellees in their brief refer on the very first page of their brief to $1650 in compensatory damages and $3.

5 million in punitive damages.

So there should not be any question with respect to whether this is a punitive damage award.

It is a punitive damage award.

As this Court has noted, and as even reflected in the Justice Embry opinion, the damages were for punishment and deterrence and not for compensation.

With respect to the $30,000 which was paid to settle Justice Embry's case, it is in the record that we have provided with and cited to this Court.

It is also in the record in the Nationwide case v. Clay, which is also before this Court, that that check was given to Justice Embry's attorney, and Justice Embry's attorney deposited that $30, 000 check in a trustee account and then remitted that $30,000 to Justice Embry.

We have been... it's been suggested that the Appellant did not comply with Alabama procedure.

That is not what was bond by the Alabama courts.

The Alabama Courts, in response to the petition for rehearing, uttered the word "overruled", a phrase which is uses when it has in fact addressed the issues.

I have nothing further to add except to say that the denial of due process in his case, Mr. Chief Justice and this Court, was rather massive.

A standard was set after the conduct; punitive damages in a higher amount ever, 35 times greater than ever awarded, was imposed upon conduct which, for which the standard was set retroactively.

There was a tribunal in which one Justice had a very strong interest in the case, and then on top of everything else, there's a 10 percent appeal penalty, a penalty upon punitive damages in this case for having filed an appeal and having lost, notwithstanding the fact that no one could conceivably argue that this was a frivolous appeal.

Thank you.

Chief Justice Burger: --Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

New York v. Class - Oral Argument

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

Case:

New York v. Class

Media File:

84-1181_19851104-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF STEVEN R. KARTAGENER, ESQ. ON BEHALF OF PETITIONER

Chief Justice Burger: Mr. Kartagener, I think you may proceed when you're ready.

Mr. Kartagener: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court, the Court today is being asked to decide whether a New York City police officer's efforts to conduct a routine inspection of an automobile's vehicle identification number, the VIN, located on a dashboard of a car and ordinarily viewable through the windshield, attending a lawful traffic stop for two observed traffic infractions that were observed by the police officer, constitutes a search as that term is defined within the meaning of the fourth amendment.

Now we, of course, argue preliminarily in our brief that no search occurred here because the police officer's actions did not infringe on any reasonable, justifiable expectation of privacy in this case.

Now, of course, it's been said frequently that there are two sides to every argument, and we recognize that, of course.

And what makes this case a little bit special, and we'd like the Court to recognize that, is that regardless of how this Court determines this question of search/non-search, unlike some other cases that have come before the Court recently in which that determination was the final outcome determinative here, regardless of how the Court determines the preliminary question, we suggest that the ultimate conclusion of the Court should be the same... that there was no Fourth Amendment violation here... because we do believe that even if this was a search here, the police officer's actions in this case of opening up a car door and reaching within his hand to move aside a paper that covered the vehicle identification number was so manifestly reasonable, so minimally intrusive under the circumstances, that the proper balance between the individual's rights and the compelling interest of society was struck and that no Fourth Amendment sin occurred in this case.

Unidentified Justice: Counsel, did the decision of the court below rest at all upon the New York Constitution?

Mr. Kartagener: Your Honor, the decision of the court below cited the New York State Constitution once in the first sentence of the opinion, finding that the actions of the police officer violated the Fourth Amendment and the New York State Constitution, which by the way is worded in precisely the same fashion as the Fourth Amendment.

Only once does it mention the New York State Constitution, but we think it's rather clear under this Court's determination in Michigan v. Long, the Court does have jurisdiction to hear this case because after mentioning the New York State Constitution, it left it behind and went on to analyze the case in terms of the Fourth Amendment which was cited a number of times within the opinion, and because of the reliance that was placed on a number of the constitutional cases emanating from this Court, cases such as United States v. Chadwick, United States v. Chase, and a number of other cases, and we think that here they only cited the New York State Constitution once in Michigan v. Long... it was twice, and in California v. Carney as well there was a citing to the State's Constitution.

But, we think it clear here that there was not the required plain statement that the decision in this case rested on an adequate and truly independent State ground.

Unidentified Justice: Mr. Kartagener.

Mr. Kartagener: Yes, Your Honor.

Unidentified Justice: May I inquire whether under New York law, New York would have required exclusion of the evidence in question?

Mr. Kartagener: Well, the New York Court of Appeals said that under the Fourth Amendment, and this is the first case that has gone to the--

Unidentified Justice: I am asking you, as a matter of New York law, because presumably you practice law there and are familiar with it.

Mr. Kartagener: --I would suggest, Your Honor, that New York law would not require the exclusion of evidence, that this is a case of first impression there.

The Court saw no need, as it has in so many other cases, as I might point out, Justice O'Connor, that Court, the New York Court of Appeals, is not shy about making its opinion known when it feels that New York law alone might require the exclusion of evidence although the Fourth Amendment does not.

I would suggest that since this case came down after Michigan v. Long, the New York Court of Appeals was on ample notice as to how to make that plain statement and chose not to do so.

It said it violates the Fourth Amendment and the New York State Constitution, and basically left--

Unidentified Justice: Would it have... what about the statutory question?

They also said, as I read the last paragraph, that Section 4 of the Vehicle and Traffic Law did not authorize the officer to do what he did.

Mr. Kartagener: --Well, that is done, Your Honor, because that was refuting an argument that we made in our brief.

They did not say that that statute, Vehicle and Traffic Law Section 401, prohibited the search.

They merely said that the search violated the Fourth Amendment and 401 which has nothing to do with vehicle identification numbers themselves, did not give the police the authority that we suggest that it might have, and we think that it is one thing to say that a statute doesn't give you the right to do it, and entirely another thing to say the Fourth Amendment proscribes it.

The Court did not say that VTL Section 401 prescribed the search, Justice Stevens.

Unidentified Justice: Would you go back... you skipped over... the wording is exactly the same?

Mr. Kartagener: Yes.

The New York's Constitution--

Unidentified Justice: So, when they're talking about the Fourth Amendment, could they possibly be talking about the New York--

Mr. Kartagener: --Well, I think that because it is precisely the same wording, it's logical that they might frequently cite the New York counterpart to the search and seizure provisions of the federal Constitution, but I think it's clear that the decision rested largely on federal grounds.

At the least, they were integrally interwoven.

If I might suggest to the Court--

Unidentified Justice: --May I just pursue the statutory question one more moment.

You said it didn't authorize them to do it?

Mr. Kartagener: --Yes.

Unidentified Justice: But what good would it have done to say it authorized it if they had already held that it was constitutionally impermissible for the officer to do that?

The statute couldn't authorize a violation of the Constitution.

Mr. Kartagener: No.

What we were suggesting, Your Honor, was that under New York law, because there is an obligation to surrender one's certificate of registration, and that's what VTL 401 is all about, that the giving over of the certificate of registration is meaningless if you can't compare the registration against the vehicle identification number.

So we tried to draw an analog.

Because the driver was required to hand over the certificate of registration, there had to be an absolute right under the statute to check the vehicle identification number out.

But what I think is critical once again is that that was an argument that we made as a justification for saying it fit in with the general scheme.

The Court rejected that argument.

But what they did say was, assuming that statute doesn't exist, what you really have here is a violation of the Fourth Amendment.

And, as I read this Court's decision in Michigan v. Long, I'd like to suggest that it's precisely the type of discussion that we're having right now, about whether New York law might require or wouldn't require, which has been eschewed by the Court's determination in Michigan v. Long that we shouldn't be getting into that type of a debate.

If the face of the opinion does not contain a plain statement from the State Court saving, we are deciding this essentially on an adequate and independent state ground... perhaps here the New York State Constitution or statute, it's not goin' to do that, that opinion, and instead cites the Fourth Amendment repeatedly, and cases from this Court repeatedly.

We think it's rather clear that the Court, consistent with Michigan v. Long and California v. Carney has the jurisdiction to consider and to decide this case.

This would not be an extension of that principle.

If anything, it's a diminution of sorts because in Michigan v. Long, as I pointed out, it had two citations to the State Constitution.

Here we've got only one.

I've suggested to the Court that there are two bases, or two sides of the line here, search or non-search, and we suggest that we should prevail under either.

But, we do believe that as a matter of constitutional law and as a matter of common sense, the sounder conclusion is that no search did occur here.

Why do I say that?

Because we know that the term "search" has a very special meaning in the decisions of this Court.

There is no search unless the Government intrudes upon a reasonable, justifiable or legitimate, if you will, expectation of privacy that the individual has, and we suggest to you that clearly, under the circumstances of this case, the Respondent could have had no reasonable expectation of privacy.

Why?

To begin with, we're dealing with an automobile, not the individual's person, not his home, not his office, an automobile which this Court has recognized involves a reduced expectation of privacy in the first instance.

And why is there that reduced expectation of privacy?

Some of the early decisions of this Court noted the relatively open configuration of the Court... of the car, excuse me.

But in California v. Carney the Court says, but there's another very special thing.

Cars are pervasively regulated.

Well, here you have pervasive government regulation of a car.

You have a car being stopped because of traffic infractions.

Everybody knows you have to hand over your registration, your license, and today frequently the insurance card, and yet... and presumably to give meaning to that governmental regulation.

Yet, what happens if you can't look at the VIN?

It means that the whole concept of regulating automobiles becomes nugatory.

Why?

Because the VIN, the Vehicle Identification Number, is the heart of, the sine qua non of that entire pervasive regulatory scheme.

Why?

Because my registration and anyone else's usually has the car's Vehicle Identification Number.

Unidentified Justice: In this case did he make any use of the VIN, the officer?

Mr. Kartagener: Well, the officer tried to look at it, Justice Stevens.

He wanted to check it out.

It is, we suggest, a very routine procedure for police officers to do that.

Unidentified Justice: What did he do in this case?

Did he actually write it down or phone it in or anything like that?

Mr. Kartagener: Well, what happened, Justice Stevens, was that as the car was stopped and pulled over for the two traffic infractions, the driver got out of the car and proceeded back to the police car to speak to one of the officers who was standing there, Officer Meyer.

Unidentified Justice: Is that customary in New York, incidentally?

Isn't it good police practice to keep the supposed offender in the automobile?

Mr. Kartagener: Well, Justice Blackmun, I'll be quite frank about that.

The best police practice, I do believe, and I've read some of the police training manuals, is to keep the individual in the car on some occasions, depending on the circumstances.

However, in Pennsylvania v. Mimms, it was condoned to bring an individual out of the car if there is a concern for the police officer's safety.

There doesn't have to be a reasonable suspicion or anything.

Sometimes he'll bring the individual out of the car.

Generally speaking, I do believe, police officers maintain greater control by keeping the individuals in the car.

But what happened here, it's not the police officer who got the individual out of the car.

What happened was, answering Justice Stevens' question, is that the car was pulled over.

Before the police officers even got up to the individual's car, the Respondent here, the defendant down below, gets out of his car and walks back to the police officers' car.

As he was speaking to Officer Meyer, his partner, his regular partner, Officer McNamee, walked up to the Respondent's car to try to look at the vehicle, inspect the Vehicle Identification Number.

What happened then?

He assumed because it was an older car, and the earlier case before this Court that he dealt with a very expensive car, this was not such an expensive car.

It was a '72 Dodge Duster.

It was an older car.

The officer assumed the VIN might be on the door jamb as the older cars had, so he opened up the car door to look on the door jamb, did not see the VIN number there.

He then knew that it would have to be in one location, on the dashboard in a position that should be viewable through the windshield, because mandatory federal regulation now says that ever since 1969 the VIN belongs there so everybody, including police officers, can look at it.

And, what does he find?

A little bit of paper, a mischievous scrap of paper, is covering the VIN number.

So, although my adversary here--

Chief Justice Burger: We will resume there at 1:00 o'clock, counsel.

Mr. Kartagener: --Yes, Your Honor.

Thank you.

Chief Justice Burger: You may resume argument, counsel.

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

I hate to leave a question unanswered, and so if I may answer the question that was asked of me by Justice Stevens at the end of the morning's argument, the question was did the police officer do anything with the Vehicle Identification Number, if I remember the answer correctly.

And the answer, Justice Stevens, is that he never really had the opportunity to do anything with it because as he was reaching into the car to move the scrap of paper off of the VIN number he looks down, and what does he notice?

Lo and behold, sticking out from underneath the seat... he did not look under the seat, but sticking out by about an inch is the handle of a pistol.

He recovered the pistol and then the Vehicle Identification Number became at least somewhat de minimis because what they were confronted with then was the felony of an unlawful weapons possession.

But I would point out also, the defendant, the Respondent here, did receive two traffic infractions summonses in addition to being arrested for the felony and to some extent the VIN number became at least somewhat... or less important because they also discovered during the course of their inquiry and discussions with the defendant that he was an unlicensed driver as well.

So, the likelihood is, this was not going to be the type of case where they would check a VIN number and let the defendant perhaps drive on his way.

This was a situation where he was not going to be allowed to get back into that car and drive it.

ORAL ARGUMENT BY STEVEN R. KARTAGENER, ESQ. ON BEHALF OF PETITIONER -- Resumed

Unidentified Justice: I would suppose your reasons for wanting to know the VIN number to determine whether maybe it was a stolen vehicle or something might have been increased rather than decreased when you suspected him of other wrongful conduct?

Mr. Kartagener: Well, we do not suggest that he was suspected of any wrongful conduct in the form of a stealing of the car or anything like that.

Unidentified Justice: But then, why do you look at the VIN number?

Mr. Kartagener: You check the VIN number for a number of reasons.

The only way you can tell for sure that a car is the car described in a registration certificate or in an insurance card is by comparing that number with the VIN number.

If you don't make that comparison those pieces of paper don't mean that much, quite frankly.

Unidentified Justice: Do you suppose that when they got him down to the police station on the possession of the gun charge, that somebody would check out to see whether he was driving a stolen car at that time?

Mr. Kartagener: Well, certainly we would suggest that under the circumstances, if he is going to be arrested for the weapon, the police have an absolute right to check the VIN number and if it turns out to be stolen that would be an added charge that he was going to face.

Unidentified Justice: Do you think there might be some connection between this man's cooperative conduct in getting out of his car and going to the policeman, and the fact that he knew he had a pistol under the seat?

Mr. Kartagener: Well, I certainly think that is a reasonable inference to draw from the circumstances, Your Honor.

And indeed, the lower state courts found that there was some reasonable suspicion tied to his getting out of the vehicle and walking over to the police car, but I do not come before the Court today to argue vigorously that that in and of itself creates reasonable suspicion that the car is either stolen or that there is a weapon in the car.

I don't argue that.

Unidentified Justice: That's something for the fact finders, I suppose.

Mr. Kartagener: Well, the facts found by the lowest court, the Supreme Court, Bronx County, the trial court, it was reasonable suspicion.

But the New York Court of Appeals disavowed that and said that the getting out of the car in and of itself does not create that type of reasonable suspicion.

Unidentified Justice: When an unarmed man walks up to two policemen, you think that's suspicious?

Mr. Kartagener: No.

I'm suggesting, Your Honor, that--

Unidentified Justice: Do you?

Mr. Kartagener: --No.

Unidentified Justice: I didn't think so.

Mr. Kartagener: I do not.

But, I was not the fact finder, and I'd say that that, standing alone, Your Honor, it can be a whole bunch of things.

Sometimes a certain look by an individual might add to it, but--

Unidentified Justice: It doesn't help me to decide that.

Mr. Kartagener: --I'm sorry, Your Honor?

Unidentified Justice: It doesn't help me to decide--

Mr. Kartagener: The fact that he got out and walked--

Unidentified Justice: --Yes.

Mr. Kartagener: --Well, it does in one respect, Your Honor, because I think it helps us in one important respect.

This Court, in Pennsylvania v. Mimms, said that in the context of a routine traffic stop with any concern that an individual is armed, you have the right to force the individual to get out of the car.

We didn't even have to move the person.

Unidentified Justice: How were you worried about this man being armed, when the gun's in the car and he's out of the car?

Mr. Kartagener: Well, that brings us, quite frankly, to a latter portion of our brief which I'd like to answer and that is, if we are going to be dealing with the question of concern about the individual being armed, and I would suggest that doesn't go to the question of whether it's a search or whether it's a reasonable search, but if we address our last argument which is that where police have a right to stop a car initially, may they check the car, perform a visual frisk, for purposes of finding out whether there's a gun, I think that's something that the law would support.

I think it is reasonable even if he is out of the car, just as in a Belton situation, if an individual is handcuffed, the police still have the right to search the interior of the car if there's been a full-blown arrest.

We suggest that it is a much more fluid situation when someone has not been subjected at that point to the full-blown arrest and handcuffed, can theoretically get back into the car if he wishes to take a desperate effort because he knows he's got a gun there, and perhaps hurt the police.

And I would suggest, Your Honor, when we address... and I don't wish you to dwell on it at great length now... the final portion of our argument, but I would point out that our final argument in the brief in which we argue that there should be a right, where there has been a lawful traffic stop, and there exists the right to execute a full arrest, if the police officers decided whether or not to do that there should be the right to do a visual frisk of the interior of the car to protect the police officers.

We make that argument because I think the statistics, the real world statistics, support it and I think the Court is very sensitive to police safety, both in the Belton context and in the context we'd ask it to be sensitive to, in sub-point "D" of our brief.

Unidentified Justice: When they got him down to the station, the man in the car, wouldn't they make a routine inventory?

Mr. Kartagener: Absolutely.

Unidentified Justice: Of the contents of the car?

Mr. Kartagener: If the car is in fact seized and brought down to the station, they would absolutely under New York law do a routine inventory which under South Dakota v. Opperman would be completely proper under the circumstances.

So, in a sense there would be an inevitable discovery type of situation.

In fact, he's arrested for something and brought down to the police station.

Unidentified Justice: Yes, but I gather for this traffic offense, but for the gun in the car they would never have taken the car to the police station?

Mr. Kartagener: That's not entirely clear, Your Honor, for the following reasons.

Unidentified Justice: Ordinarily, if it's... what was the traffic offense?

Mr. Kartagener: The traffic offenses initially observed, but not all of them, was speeding and driving with a shattered windshield.

Unidentified Justice: Well, ordinarily don't they just give you a ticket, or have I been lucky?

Mr. Kartagener: Well, I think we've all... perhaps we've all been lucky in that respect, Your Honor.

But the fact remains that under New York law there could have been an arrest.

Unidentified Justice: Is that what usually happens?

Mr. Kartagener: I looked for statistics and I could not find any, on what usually happens.

But if I might answer it and say, this case is a little different, Your Honor.

In this case not only was there the speeding but there was an added, very important factor which we address in sub-point "C" of our brief and that is that he was also determined to be an unlicensed driver.

This individual, under no circumstances in this case... the gun had not been found, just like an intoxicated driver could not be allowed to get back into that car and drive it away.

There is a very substantial possibility that he would have been arrested as well because--

Unidentified Justice: Did you say he was unlicensed, or he did not have his license?

Mr. Kartagener: --No, I think the record is rather clear, if you look at page 836 of the Joint Appendix, that he was an unlicensed driver and in fact received a summons for being an unlicensed driver, not that he wasn't carrying it on that day but that he was an unlicensed driver, and that was the testimony at the suppression hearing.

Unidentified Justice: When did they know that?

Mr. Kartagener: Excuse me, Your Honor?

Unidentified Justice: When did they know that?

Mr. Kartagener: One of the police officers learned that at the scene.

He was speaking--

Unidentified Justice: Didn't he just know that he didn't have his license?

Mr. Kartagener: --No.

The police officer at the scene, I believe was told by the defendant that he was an unlicensed driver.

I mean, he determined that he was unlicensed.

Unidentified Justice: So, the police then would have had to get in the car anyway?

Mr. Kartagener: Well, that is one of our substantial points, Your Honor, and that is that even if you were to find that putting aside the larger argument, which is the general right of police officers to enter a car in conjunction with a routine traffic stop such as this, particularly when you're dealing with an unlicensed driver, there has to be because of that status as a wrongful driver on the highways an expectation that if you are lawfully stopped there will have to be some police intrusion into the interior of your vehicle to pull it over, lock it, or tow it away.

Unidentified Justice: There were two policemen, weren't there?

Mr. Kartagener: There were two police officers.

Unidentified Justice: And one of them got in the car without knowing anything except that this fellow had been speeding?

Mr. Kartagener: He... the word was "got in the car".

If I might suggest, I don't view this as a getting in the car.

Admittedly, there was a technical entry.

He opened the door and reached into it.

Unidentified Justice: I'll change my language, entered the car, when he entered the car.

Mr. Kartagener: Reached into it, if I may be permitted, Your Honor.

He reached into the car.

It's not even a full body entry, as in some cases, and he did that before he learned that it was an unlicensed driver.

But his partner at the scene did know that.

We suggest, and it is one of the arguments in our brief, and it's not such a novel proposition, there are certainly circuit court decisions from the circuit courts of appeal that accept the concept of police team knowledge.

It should be the knowledge, the combined knowledge of the state, made up of both police officers at the scene, that should govern the quantum of knowledge that the police officers had to justify the action.

If I might get back--

Unidentified Justice: Well, why do you use the computer?

Mr. Kartagener: --Excuse me, Your Honor?

Unidentified Justice: Why do you use the computer, if every officer's got all of the information?

I don't know what you are trying to tell us.

Mr. Kartagener: Well, I'm suggesting--

Unidentified Justice: That an officer in New York knows what all of the officers... how many officers do you have in New York?

Mr. Kartagener: --I see what Your Honor is saying.

I'm not suggesting that we're going to give the knowledge of one police officer to the whole police department.

If I may, that's not my point.

My point is the urge upon the Court an acceptance of what is called the police team knowledge.

That way, there are two police officers at the scene of an incident.

You don't give them all of the knowledge of every police officer in New York City, but the combined knowledge of those two police officers should justify whatever action the State takes, and you should not have to parse out, that's what this police officer knew, that's what the other officer knew.

If I might suggest, we don't have to accept that principle to say that this was a reasonable search under the circumstances.

I have argued, and I think legitimately, that it is not a search at all because there was no legitimate expectation of privacy in the VIN number or the information in it, nor could the defendant or respondent create a legitimate or reasonable expectation of privacy by allowing a piece of paper to cover that VIN number, just as the people in Oliver could not create a reasonable expectation of privacy by putting up "don't trespass" signs.

Unidentified Justice: I suppose if it had been the practice of the manufacturer to put the VIN number under the back seat... would you be making the same argument, that they just didn't have any interest in the privacy of the VIN number, even if you had to get into the car and take out the back seat?

Mr. Kartagener: The answer, Your Honor, is that that could not be the decision of the manufacturer because by federal regulation it must be where it's located in the dashboard, precisely for the reason that everybody can see it.

But if I may answer your question, if it's under the hood, let us say, or in the back seat and there was a legitimate basis for checking the Vehicle Identification Number, yes, we would say that if police officers know that that's where the Vehicle Identification Number is, they have the right to check it out once probable cause exists, and you do have probable cause here for the traffic infractions.

Unidentified Justice: Well, on that basis you should just say that you can always search a car any time you stop somebody who is subject to an official arrest; as long as there's probable cause.

You don't have to arrest him.

Mr. Kartagener: That is one of our arguments, sort of, Your Honor, if I might say, and that is we don't advocate rambling searches.

What we do say is this.

If there is probable cause to effect an arrest, as Your Honor pointed out, we do believe the police should have the right for a different reason to engage in a self-protective visual frisk, if you will, of the interior of the car.

If I might be permitted to, I would like to reserve the remaining time that I have for rebuttal.

Thank you.

Chief Justice Burger: Mr. Cogan.

ORAL ARGUMENT OF MARK C. COGAN, ESQ. ON BEHALF OF RESPONDENT

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

I would like to commence my argument by responding to as question that was posed both by Justice O'Connor and Justice Stevens before the lunch break, and in doing so we would like to emphasize that it is our contention that the judgment of the New York Court of Appeals was decided on adequate and independent state grounds, both in the New York State Constitution, Article 1, Section 12 which was cited by the Court of Appeals in its decision in this case, in which that Court is used in a whole host of cases to declare a substantial independent right against unreasonable searches and seizures under New York's Constitution, and also under Section 401 of the Vehicle and Traffic Law.

In its opinion rendered below, the Court of Appeals discussed the New York Vehicle and Traffic Law, Section 401, to determine whether in the case of an ordinary traffic violation, whether an officer has a right to search the car for the Vehicle Identification Number.

The Court of Appeals held that Section 401 gives the officer absolutely no authorization to conduct a search.

The correct procedure for an officer to follow when he wants VIN information, other information to identify the car, is for the officer to make a demand.

The officer has a right under Section 401 to demand the VIN from the motorist.

Unidentified Justice: Well, Mr. Cogan, if that were dispositive of the case, why did the New York Court of Appeals write all the rest of the opinion it did on the constitutional issue?

Mr. Cogan: The Court of Appeals addressed both the constitutional issues, state and federal, and the statutory issue, and the mere fact that the Court not only addressed constitutional but also statutory grounds for this search is not dispositive of the question, whether there were in fact adequate and independent state grounds.

Unidentified Justice: Does the New York Court of Appeals have any rule that it prefers to avoid constitutional decisions if a decision could be placed on a statutory basis?

Mr. Cogan: I don't know of any such policy that has been enunciated in its cases, but quite often state courts will address both statutory and constitutional issues in a single opinion.

What the Court first addressed, it first addressed itself to the question whether this was a search that violated--

Unidentified Justice: Mr. Cogan, does New York have a rule that if there's no violation of the Constitution but merely an action in excess of statutory authority, that the exclusionary rule will apply?

Is there any such case?

Mr. Cogan: --The case that would come to my mind would be People against Marsh, decided more than ten years ago by the Court of Appeals, which was the case where the Court first enunciated the fact that in New York there is no authorization for a search upon an ordinary traffic stop.

And, in People against Marsh, the Court addressed itself to the question whether a search was authorized by the statute and it also considered whether the search was authorized under the Constitution.

It found the answer to both those questions was no, and so our answer would be that the search in violation of statutory or constitutional dictates mandates exclusion of the evidence.

Unidentified Justice: But you've got violations of both, is what you're saying?

We don't know for sure whether they would have excluded if there had only been a statutory violation, and that's why perhaps they had to decide the constitutional question in order to include the other one.

Mr. Cogan: What the Court of Appeals decided was that this was an unlawful search, and it decided that on three different grounds, each of which is an independent ground for decision, and in so holding the Court of Appeals had no choice other than to suppress the evidence.

Unidentified Justice: If the Court had said, we do this on the basis of the Constitution and our statute, we wouldn't have this case?

Mr. Cogan: We would maintain that the Court of Appeals did say that, in effect, in its opinion.

Unidentified Justice: I didn't--

Mr. Cogan: The Court may not have used those precise words.

Unidentified Justice: --Well, did you urge them to rule on the federals?

Mr. Cogan: Throughout the entire litigation of this case in the state courts, the defendant maintained that this search violated his rights under state and federal law.

Unidentified Justice: And you didn't urge the federal?

Mr. Cogan: We urged both state and federal law.

Unidentified Justice: Well, why didn't you argue just the state?

Mr. Cogan: The answer, Your Honor, Justice Marshall, is that we maintain that the search violated both state and federal law.

We saw no need to limit ourselves--

Unidentified Justice: I understand.

Mr. Cogan: --to... now, if I may turn to the substantive issues addressed in this appeal, should this Court reach the Fourth Amendment issue framed by the Petitioner, we maintain that the Court should hold that Officer McNamee conducted an unreasonable search when he entered Mr. Class's car in order to see the vehicle identification number, where Officer McNamee had absolutely no factual grounds to believe that the car was stolen.

Officer McNamee never stated the reason why he wanted to see the VIN.

He never suggested that he had any belief that the vehicle was stolen, and indeed under the facts of the case there could have been no such reasonable belief.

The only thing that Officer McNamee knew when he plunged into Mr. Class's car was that this person had been stopped for driving five to ten miles per hour above the speed limit and that he had a cracked windshield.

Without even waiting to hear what Mr. Class disclosed to his partner, Officer Meyer, in the way of registration, the insurance documents for the car which Mr. Class produced and were in order, Officer McNamee proceeded straight to the car and went inside.

Officer McNamee did not wait to hear any communication from his partner, and since there was no communication between the officers at the scene of the stop, Petitioner's argument that the collective knowledge of the officers is plainly without any merit.

This Court has held that one officer's knowledge can be imputed to another officer only where there has been some kind of communication between the officers, or a directive, for instance from one police department to another police department, as the Court decided in Hensley.

Unidentified Justice: You say we held in Hensley that that was the only way it could be done?

Mr. Cogan: The only way that we have been able to find it in this Court's decisions, that information can be imputed is where there has been communication.

Unidentified Justice: But your sentence could be confusing.

I think it's one thing to say that the Court has held it may be done in this way, and has never held it may be done in any other way, and it's another thing to say that the Court has held that it may be done in this way and only this way.

I take it, it was the former that you meant to say?

Mr. Cogan: That's right, Your Honor.

There has never been a holding that mere collective knowledge is sufficient to give an officer authorization.

Unidentified Justice: Has there ever been a holding that it is insufficient?

Mr. Cogan: Exactly.

The intrusion into Mr. Class's car plainly constituted search under this Court's decisions.

Why did it constitute a search?

Because intruding into Mr. Class's car, Officer McNamee made the physical entry and by doing so he was able to expose areas of the passenger compartment of the vehicle which would not have been visible to him without making that intrusion.

That is the basic definition of a search.

There can be no other interpretation as to that matter.

Having conducted a search, and we're not necessarily contending this was a full-blown search of the car necessitating probable cause, we're not maintaining that the officer needed to have probable cause in order to make his intrusion.

All we would state--

Unidentified Justice: Probable cause to do what?

Mr. Cogan: --To enter the car, probable cause to believe that the car was stolen.

Officer McNamee--

Unidentified Justice: Or that it contained some--

Mr. Cogan: --Some contraband.

Unidentified Justice: --Some contraband, or evidence of crime?

Mr. Cogan: We're not maintaining that probable cause is the standard.

All we are stating is that when an officer makes such an intrusion into a car, exposes areas not otherwise visible to the outsider, that constitutes a search and he may not do so unless he has some factual basis for believing that there would be some contraband or some stolen car.

Unidentified Justice: As you read the record, he opened the door, right?

Mr. Cogan: He opened the door because he thought the VIN was on the door panel.

Unidentified Justice: He reached in for the paper?

Mr. Cogan: He leaned inside, reached for the papers.

Unidentified Justice: He never went in there, he never went in the car?

Mr. Cogan: He leaned into the car.

Unidentified Justice: He never went in there?

Well, he did put his rear end in there, did he?

Mr. Cogan: It seems that he put his head in the car, and shoulders, perhaps.

Unidentified Justice: His top end, then?

Mr. Cogan: I'm sorry?

Unidentified Justice: His top end, of his body?

Mr. Cogan: That's right.

Unidentified Justice: And that's as far as he went, when he saw the gun?

Mr. Cogan: Right.

Unidentified Justice: After he saw the gun did he have a right to search everything in reason, once he saw a felony?

Mr. Cogan: I would concede that.

Unidentified Justice: And the possession of a gun in New York is a felony?

Mr. Cogan: Once he saw the gun, and Mr. Class was certainly--

Unidentified Justice: He could search everything, couldn't he?

Mr. Cogan: --Certainly, and if he had seen the gun as in Texas against Brown, if he had seen the gun without entering the car he could have seized it.

Unidentified Justice: But he did.

Mr. Cogan: Under the plain view doctrine--

Unidentified Justice: He did, without entering the car.

Mr. Cogan: --In Texas--

Unidentified Justice: His eyeballs entered the car.

Mr. Cogan: --Well, the record shows, in our opinion, Your Honor, that Mr.... that Officer McNamee opened the door, leaned into the car, whatever part of his body that was in the car, the top part of his body if you will, was inside the vehicle because when he saw the weapon he saw it by looking down.

His head must have been inside the car.

Unidentified Justice: You say that he could not have seen it from outside the car?

Mr. Cogan: Certainly there is nothing in the record.

Unidentified Justice: That says he could, but--

Mr. Cogan: There is no support in the record for the proposition that this weapon could have been seen from outside the car.

Unidentified Justice: --Suppose--

Mr. Cogan: Petitioners never--

Unidentified Justice: --Suppose they hadn't found the gun; all they found was the number which had been obscured and you couldn't see it from outside, and suppose in a criminal prosecution later it became, that number became relevant.

Would that number have been admissible?

Mr. Cogan: --Would it have been relevant, had the--

Unidentified Justice: No, no, not relevant.

Would it have been admissible?

Assume it had been relevant to some element of the crime that was charged.

Now, he couldn't get that VIN number without getting inside the car.

Would you say that that would be also excludable?

Mr. Cogan: --As long as the officer had no right to enter the vehicle, the fruits of that search, the evidence that he obtained as a result of that intrusion, must be suppressed.

Unidentified Justice: Do you think then that the availability of a vehicle identification number to an officer depends on him having either reasonable suspicion or probable cause or something along those lines?

Mr. Cogan: Well, we would say that in order for an officer to make a physical entry into a vehicle, he has to have some factual grounds sufficient to suggest a reasonable possibility that the car is stolen.

Unidentified Justice: You don't think Congress intended to make VIN's regularly available to law enforcement people?

Mr. Cogan: In its regulations, in the federal regulations where manufacturers are required to place the VIN on a certain part of a vehicle, the reason why we have the regulations structured in that way is because it's assumed that in many cases in VIN could be seen without making a physical intrusion.

Unidentified Justice: What about looking through the windshield?

Mr. Cogan: Looking through the windshield without entering the vehicle at all, and that's often what will happen.

Unidentified Justice: So, as to that, you have no objection?

Mr. Cogan: No, certainly.

We do not maintain that an officer can't see what's in plain view.

Unidentified Justice: But it couldn't be done in this case because there was a piece of paper over the VIN?

Mr. Cogan: In this case it so happened, and I'm sure that if Your Honors will notice cars you see parked on the street, you will see that in many cases vehicles have all kinds of scraps of paper in the base... we're talking about in the base of--

Unidentified Justice: Should the driver be able to benefit from the fact that he obscures the VIN from a view that would not have amounted to a search?

Mr. Cogan: --Well, this would be my answer, there is nothing in the record here to suggest that this VIN was covered up intentionally.

It was at most inadvertent.

The Petitioner tries to make what he can as to whether it was intentional or negligent.

But, in fact, there is nothing in the record to suggest that this was anymore than--

Unidentified Justice: Does the law require... does the law require the driver to reveal the VIN to an officer?

Mr. Cogan: --There is no regulation that prohibits a motorist from allowing a scrap of paper to settle on top of--

Unidentified Justice: No, no.

What if the officer says, I want to get in your car to look at the VIN number.

Must the driver let him in?

Mr. Cogan: --This is addressed by New York State law.

The Legislature has determined that--

Unidentified Justice: How about federal law?

Mr. Cogan: --I don't know of any such statute, but under New York law, which we think is very relevant to this case and which the Court of Appeals addressed--

Unidentified Justice: Where was the driver when the policeman put his head in the car?

Mr. Cogan: --Once Mr. Class was stopped for his five to ten miles an hour speeding violation, he walked... he proceeded, he exited his car, walked up to Officer Meyer, showed him... said,

"What can I do for you, Officer. "

showed him his registration, insurance papers.

He had closed the door after he exited the vehicle.

Unidentified Justice: Well, get to my question.

Was the car empty when the policeman put his head in the car?

Mr. Cogan: Empty of what?

There were no other passengers.

Unidentified Justice: Passengers, yes, that's what--

Mr. Cogan: No, no other occupants.

Mr. Class was--

Unidentified Justice: --If he had been sitting in the car, it would have been perhaps more normal, the officer might have simply said, "give me" whatever it was he was looking for and there wouldn't have been any occasion for him to put his head inside.

Mr. Cogan: --That's right, and that's what, we maintain, is exactly--

Unidentified Justice: It was an empty car.

Mr. Cogan: --is exactly what was wrong in this case.

Officer McNamee--

Unidentified Justice: You can't give him a VIN.

Mr. Cogan: --Right.

Unidentified Justice: I thought that's in the body, metal.

Mr. Cogan: It's attached to the vehicle.

Unidentified Justice: It's part of the vehicle.

Mr. Cogan: Correct, it's on a--

Unidentified Justice: I mean, you can't hand it out.

Mr. Cogan: --No, clearly you can't.

The statute that the New York Legislature has adopted, as interpreted by the highest authority on New York law, the New York Court of Appeals, provides that an officer is to demand the information of the motorist.

He has no right to undertake a search for this information.

Unidentified Justice: But the Court didn't tell us what the officer does if the driver says,

"I'm sorry, I won't tell you. "

Mr. Cogan: This is speculation, of course, but what might have happened had Officer McNamee asked, as he properly should have done, for the Vehicle Identification Number information, he... certainly, had Mr. Class refused him access to that information Mr. Class would have committed a further violation of the traffic law and could have received a summons.

Unidentified Justice: Is there a statute that says you've got to give your accurate identification?

Mr. Cogan: There's a statute that requires Mr. Class... the statute we're talking about is Section 401, requires the motorist to give to the officer the registration and other documentation including the VIN number.

Unidentified Justice: I thought I asked you a while ago, and I thought you said there was no such law?

Mr. Cogan: I'm sorry, maybe I didn't understand your question.

Unidentified Justice: The motorist is obligated the give the officer the VIN number?

Mr. Cogan: That is right, New York law, Section 401.

Unidentified Justice: And you say the statute doesn't allow... the New York courts have ruled that the law does not permit the officer to enter the car, is that right?

Mr. Cogan: That's right.

Self-help is not an option.

Unidentified Justice: Even if the driver refuses?

Mr. Cogan: It's not clear whether the officer would have a--

Unidentified Justice: But it is clear that if he refuses, he's committed a crime?

Mr. Cogan: --He has not committed a crime.

He's committed a violation of the Vehicle and Traffic Law, which is New York is not classified a crime.

Unidentified Justice: And you couldn't arrest for it?

Mr. Cogan: There is authorization for an arrest in a case of a traffic violation, and this may go back to Justice Brennan's question earlier.

There is authorization under New York statutes for an arrest for the most minor vehicle traffic violation.

But, as the New York Court of Appeals has held repeatedly, an arrest is not the appropriate procedure for an officer to follow.

It is far... it is anything but inevitable for an officer to place a motorist under arrest for an ordinary traffic--

Unidentified Justice: Mr. Cogan, if there were a situation here where the officers had probable cause to place Mr. Class under arrest, would they then have the right to enter the vehicle?

Mr. Cogan: --Merely upon the existence of probable cause to arrest for a traffic violation, no, Your Honor.

Unidentified Justice: For some other violation?

Mr. Cogan: Mere probable cause to arrest is not a sufficient ground for making a search incident to arrest.

We have cases going back many years, that this Court has decided, which hold that the search incident to arrest power exists only where there has been a custodial arrest, not a mere--

Unidentified Justice: They certainly have the power to enter the car and inventory it under those circumstances, don't they?

Mr. Cogan: --When--

Unidentified Justice: So, what's the difference?

Mr. Cogan: --Under New York against Belton, of course, the officer has the power to conduct a search incident to arrest.

Unidentified Justice: If he arrests.

Mr. Cogan: If he arrests.

That is the big Mr. Class would have been arrested for his traffic violation.

Unidentified Justice: But there is plenty to believe that he had never been allowed to get back in his car?

Mr. Cogan: I'm not sure that's correct, Your Honor.

Unidentified Justice: They would have let him drive away without a license?

Mr. Cogan: It is not mandated that an officer place him under arrest under those circumstances.

Unidentified Justice: I didn't ask about that.

They may not have arrested him.

What if they said,

"Why don't you just go ahead and walk home, we'll take car of your car? "

Mr. Cogan: The car might have been secured right there and they would have awaited some family member to drive it away.

Unidentified Justice: I would think they could enter the car, though, and turn the lights off and make sure the ignition was off?

Mr. Cogan: Even if they had not made an arrest?

Unidentified Justice: Yes, if they just said,

"You can't get back in your car, you don't have a license. "

What about that?

Mr. Cogan: The mere fact that he didn't have a license--

Unidentified Justice: That means that he couldn't drive away in his car.

Mr. Cogan: --Well, we would maintain that's not necessarily the case, in New York at least.

I don't know what the procedures are--

Unidentified Justice: You mean under New York law, unlicensed drivers may drive?

Mr. Cogan: --There's nothing saying that the officer's required to take him off the road, as he would in a case where there's an intoxicated driver who's a positive menace to the others on the highway.

Unidentified Justice: But there's no question that an officer has the authority--

Mr. Cogan: Absolutely.

Unidentified Justice: --to prevent him from driving?

Mr. Cogan: And it is our contention that the mere authority to place somebody on arrest has never been recognized as giving the power to conduct a search.

The arrest... the power to conduct a search incident to arrest enters into the picture only after there has been an arrest.

Unidentified Justice: They could just issue him a citation for driving without a license, and they say, look, you can't drive.

We're not arresting you, we're not going to make a custodial arrest but we're certainly going to drive your car away and you can pick it up when some member of your family... we can't leave this car on the highway so we're going to drive it down to the police station, you can come and pick it up when you want to, have your mother do it, have your father... now, they certainly would be authorized to do that under the New York law, wouldn't they?

Mr. Cogan: They were authorized to do that.

They had not taken custody of his car at the time of that search.

Unidentified Justice: And then could they do an inventory search at the station house?

Mr. Cogan: Certainly, under Opperman.

Unidentified Justice: In that circumstance?

Mr. Cogan: If this were an Opperman case where there had been a--

Unidentified Justice: Not quite Opperman, in the case that Justice White put to you, they could drive it away down to the station house?

Mr. Cogan: --Had they taken his car into custody, it seems that they would have had the power to conduct an inventory search.

Unidentified Justice: And even before an inventory, I suppose if the officers started to get in the car to drive it away, which you say he was authorized to do, and he happened to glance down and see the gun, he could seize the gun?

Mr. Cogan: It's possible.

It's possible.

There are any number of scenarios that might have happened in this case.

Unidentified Justice: Well, we're talking about this case, not ten million other.

Mr. Cogan: And what happened in this case, Your Honor, is that without any information as to Mr. Glass's licensed or unlicensed status, Officer McNamee went directly into the vehicle and at that point he--

Unidentified Justice: Well, he didn't enter the vehicle.

He put his head into the vehicle.

I'm trying to get these facts a little clearer and not slide over them.

So, when he approached the car, if the driver had been sitting in it, he surely would have had a right to say,

"Where is your VIN? "

"Where is it so I can see it? "

Could he see it without putting his head in the car?

Mr. Cogan: --Could he have seen it... well, had Mr. Class been seated in the car, let's say, had the officer prudently told him to keep his hands in view, which is a recommended procedure,

"Please remove the piece of paper that's covering up the VIN. "

as he had a right to do under New York law, he could have seen the VIN without making any intrusion into the vehicle.

Unidentified Justice: And not put his head in the car?

Mr. Cogan: He wouldn't have had to put his head in the car to see the VIN.

Unidentified Justice: Where was it located?

Mr. Cogan: The Vehicle Identification Number is commonly found on a plate that is affixed to the lower base of the dashboard.

Unidentified Justice: You say he could see that without putting his head in the window?

Mr. Cogan: Certainly, no question about it.

Unidentified Justice: He could see it right through the--

Mr. Cogan: Right through the windshield.

A VIN is something that--

Unidentified Justice: --But that's only if the driver removed the piece of paper?

Mr. Cogan: --That's right.

Unidentified Justice: So that, if the driver had said,

"No, I'm not removing any paper at all. "

you say the officer could not have stuck his head in the car and removed the paper himself?

Mr. Cogan: Under New York law, it's not clear what the officer's remedy be had Mr. Class refused to remove the piece of paper.

We maintain that the mere refusal to remove the paper, the mere refusal to give the VIN information, does not give any reasonable suggestion that the car is stolen.

There are many other things these officers could have done, had they had a suspicion that that car was stolen.

There is no need in this case for the police to intrude into Mr. Class's vehicle.

Unidentified Justice: You have just conceded a few minutes ago, I think, in response to a some question, that they could have made him take a bus home or walk home, and taken the car down to the station.

Now, as Justice White suggested, one of his questions suggested, when the officer got in the car, right at that point isn't it likely that he would have seen the gun?

Mr. Cogan: Under that scenario, it's possible he could have seen the gun.

Unidentified Justice: Suppose he didn't see it there.

You have conceded too that when it got down to the police station they could have made an inventory search and perhaps they are required to make an inventory search?

Mr. Cogan: It's possible that could have been done too.

Unidentified Justice: Then what's the problem?

Mr. Cogan: The problem, Your Honor, is the Mr. Class, the arrest, the inventory of the car, all of these things are very much speculation in this case.

There is no reason... there was not testimony in this case that the officers inevitably would have done, X, Y or Z.

Unidentified Justice: How did the car get off the street?

Mr. Cogan: I'm not sure how it got off the street.

Unidentified Justice: Do you think the officers let an unlicensed driver drive the car away?

Mr. Cogan: When Mr. Class was arrested for possession of the weapon the police took custody of the car.

But we certainly can't look to the... in retrospective hindsight to look to the fact that he was arrested and therefore justify the original entry that was the cause of the discovery of that evidence.

In summary, Your Honors, we maintain that this case--

Unidentified Justice: Mr. Cogan, if you're summarizing, when and exactly at what point do you say the unlawful conduct occurred, when he opened the door or when he stuck his head in?

Mr. Cogan: --The unlawful conduct in this case occurred when Officer McNamee opened the door of the car.

At that point--

Unidentified Justice: So, it would have been unlawful even if the VIN had been right--

Mr. Cogan: --That is right.

That is our position.

But of course, in this case Officer McNamee went further than that and leaned into the vehicle, disturbed papers on the dashboard.

One other point I'd like to make, Your Honors, is in rebuttal to the Petitioner's contention that there is no expectation of privacy in a vehicle.

Now, this Court has held that a person does not have the same expectation of privacy in a car that he has in his home.

Certainly, we're not contending that he has the same expectation of privacy there, nor has this Court ever held that there is no expectation of privacy at all in a vehicle.

People keep all kinds of very private things in their cars, even things, say, in a two-car family a husband might have a car and keep things in it that he wouldn't be comfortable having his wife see.

There might be things pertaining to a medical condition--

Unidentified Justice: --Mr. Cogan, when was the last time to your knowledge that this Court ever sustained a search of a car, ever upheld a search of a car?

Mr. Cogan: --When is the last time?

Unidentified Justice: Yeah.

Mr. Cogan: I can't honestly say, I don't know Your Honor.

Unidentified Justice: There have been a lot of car search cases in the last few years, haven't there?

Mr. Cogan: And we maintain that under no decision of this Court has the action of Officer McNamee ever been justified.

Lacking any articulable grounds for entering the car, we maintain that Officer McNamee conducted an unreasonable search in violation of the Fourth Amendment.

Should the Court reach the Fourth Amendment question, we would maintain that the judgment of the Court of Appeals be affirmed.

Also, of course, we maintain that this case is not even reviewable by this body, by this Court, because the decision rests on adequate and independent state and constitutional grounds, statutory and constitutional grounds.

Thank you very much.

ORAL ARGUMENT OF STEVEN R. KARTAGENER, ESQ. ON BEHALF OF PETITIONERS -- Rebuttal

Mr. Kartagener: Your Honors, if I may be allowed a reply, I think as the questions of this Court have pointed up to some extent, the Respondent brought the police action in this case on himself to some extent.

He allowed the VIN to be covered.

He chose to get out of the car and walk away from it.

My colleague... or my adversary, I should say, here, seems to suggest that the Fourth Amendment should be something that rewards a motorist for defeating the Congressional intent in having exposed VIN numbers, that if he chooses not to keep it exposed as expected by Congress the Fourth Amendment should rule it improper if a police officer merely reaches in to uncover the VIN.

I suggest... the silliness, I think of the New York Court of Appeals' position that what the police had to do here was send the individual back into the car to move a piece of paper out of the way himself is pointed up and underscored by the fract that the police do have some right to be concerned about police safety, and as Justice Marshall and Justice Brennan pointed out in their dissent in the Michigan v. Long case, they thought that if we're concerned about police safety once the individual's out of the car, the most minimal thing to do is for the police officer to go into the car if he's looking for a registration, once the motorist has told him where it is, and go to that certainly identifiable place.

Here, this police officer was not engaged in a rummaging search of the car.

He looked under no seats.

He went to the place on the dashboard, moving across open space, where he expected the VIN to be located, happened to look down and see a gun butt.

And, if I might respond to something Justice White spoke about, could the police officer even have seen it from outside, possibly?

Yes.

Why?

Because it's a settled fact in this case, the gun butt was out one inch from under the seat.

Now, it's true that this police officer didn't notice it at the time, although a pedestrian on the other side of the car might have been able to, and I think Texas v. Brown says the police will have the same rights as any pedestrian on the street.

The police officers might have been able to see it from outside the car.

So--

Unidentified Justice: What time of day was it?

Mr. Kartagener: --Excuse me?

Unidentified Justice: What time of day was it?

Mr. Kartagener: It was about 4:30 in the afternoon.

It had rained earlier in the day but it was daylight out, no flashlights necessary.

Had he been looking for a gun he might have seen it.

It happened to pop up, if you will, or jumped out and bit him as he happened to be reaching across, but it really was sticking out in plain view from under the seat.

Unidentified Justice: Well, plain view from where?

Mr. Kartagener: Plain view, I would certainly... once the door was opened, we believe, reasonably... but it would seem pretty obvious from outside the car had the police officer been looking for it.

I say this, Justice Rehnquist, because there is a finding of fact in this case that out from under the seat, towards the front of the car by at least one inch, was the observable, identifiable gun butt.

Unidentified Justice: That doesn't mean that you could see it just standing up outside the car, looking in the plane of vision that you would be looking through a window?

Mr. Kartagener: Quite frankly, Your Honor, to the extent that you asked me can it be done, I think it can be done.

To see if it could be done I went to a car, I mean to see what the views were, I went to the other side rather than the driver's side, looked in the open window, and you really can't see everything coming out an inch from under the seat of a car.

But, the Court doesn't have to determine that in this case.

I just suggest that it was not the type of rummaging search that the Court need believe it implicates the Fourth Amendment.

It was really sticking out from under the seat.

Unidentified Justice: Wouldn't it be reasonable for me to assume that if that were true, the policeman would have so testified?

Mr. Kartagener: Well, I think what he testified, Your Honor, was that he wasn't looking for a gun at that time.

He was just looking to check the VIN number and happened to notice the gun as he was reaching in.

Unidentified Justice: Do you characterize that he could see it from the outside?

Mr. Kartagener: Well, no.

What I'm suggesting--

Unidentified Justice: That he did--

Mr. Kartagener: --He approached it from the driver's side, Your Honor.

All I'm saying--

Unidentified Justice: --So, now you are going to testify to it?

Mr. Kartagener: --No, what I'm saying, Your Honor, is that just a viewing from the other side might have allowed for it, and all I'm suggesting is that this Court said in Texas v. Brown, the fact that a police officer may be able to twist his head and see something on an angle puts him in the same position as any pedestrian.

Unidentified Justice: But, your problem is to get the officer into the car to look at the VIN number.

Mr. Kartagener: And we suggest that this was a very--

Unidentified Justice: If he can go in to see the VIN number, why, he could notice a gun in plain sight, couldn't he?

How do you get him into the car to see the VIN number without arguing one of your other arguments?

Mr. Kartagener: --Well, I think the way he legitimately opens the door to look at the VIN numbers because looking at that VIN number was part and parcel of the probable cause to deal with the traffic infractions that he observed.

Had the paper not covered the VIN, he might have noticed it from outside.

Unidentified Justice: Every time you make a traffic stop you should be able to check the VIN number?

Mr. Kartagener: Absolutely, Your Honor.

We think that's clear, and we think there was a very reasonable--

Unidentified Justice: Even if it entails entering a car?

Mr. Kartagener: --Well, I suggest that you don't have to decide the broad issue, if it's anywhere in the car, but certainly when it's on the dashboard.

Yes, I would suggest that in any case where a VIN number's covered on the dash, and the driver stepped away from the car, it's not necessary for the police under Mimms to bring the driver back to the car, to open up the door and step in, and indeed they probably would have seen the gun at that point anyway.

So, in closing, I'd simply like to say that we would like the Court to find, as we think that it should, that the actions of the police officers in this case were so eminently reasonable, and the ruling and opinion of the New York Court of Appeals was not reasonable, and therefore that you should reverse that judgment of that Court.

Thank you very much.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Caldwell v. Mississippi - Oral Argument

Fri, 31 Aug 2012 18:29:43 +0000

Case:

Caldwell v. Mississippi

Media File:

83-6607_19850225-argument

Related Transcript:

83-6607_19850225-argument

Transcript:

ORAL ARGUMENT OF E. THOMAS BOYLE, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments first this morning in Caldwell against Mississippi.

Mr. Boyle, I think you may proceed whenever you are ready.

E. Thomas Boyle: Mr. Chief Justice, members of the Court, this case is here on certiorari to the Mississippi Supreme Court.

There are three issues that I would like to address in this appeal.

The first is whether or not the remarks by the prosecutor that the verdict, jury verdict is non-final and subject to appellate review constitutes constitutional error.

The second issue is whether or not there was a denial of Sixth and Fourteenth Amendment rights in denying experts and a criminal investigator.

And thirdly, whether certain remarks by the prosecutor at the sentencing phase of the trial, wherein he alluded and compared this case with all the other capital cases that he had tried, whether or not that constitutes plain error which this Court should notice under the due process clause.

The facts with regard to the first issue are as follows.

Under Mississippi practice, the prosecutor has the right to open and close during summation.

During the rebuttal portion of his summation to the jury, he argued, your decision is not the final decision.

Your decision is reviewable.

Defense counsel immediately objected.

The court ruled on that objection and overruled it, stating that under the Mississippi death statute there was in fact mandatory review of decisions by the jury in a capital case, and instructed the prosecutor to make full expression of his argument.

The prosecutor proceeded to state to the jury that defense counsel had wrongfully insinuated that their decision was not final, and again repeated that it was subject to review.

Unidentified Justice: He did a little more than that, didn't he?

E. Thomas Boyle: Yes.

Unidentified Justice: He said, in effect, if you render a verdict of guilty here and return that sentence, you will be the killers.

E. Thomas Boyle: Yes, he did.

Your Honor, on appeal to the Mississippi Supreme Court with regard to this issue, assigned appellate counsel failed to set this forth in the claim of error statement which is required to be filed under Rule 6B of the rules of the Mississippi Supreme Court.

The Mississippi Supreme Court split four to four, with one judge disqualifying himself.

The court ruled... based its decision primarily on three grounds, first, that under this Court's decision in California against Ramos, that the states were free to determine what the jury would hear in this area, and felt that this was appropriate argument.

Secondly, they maintained that this was invited error by suggesting that imprisonment was for the rest of the petitioner's natural life, and thirdly, the court held that the issue was foreclosed by virtue of the failure of counsel to comply with Rule 6B.

Petitioner maintains that the remarks violated the due process clause and the Eighth Amendment first on the ground that those remarks were false and misleading to the jury.

The statute involved here, and it is set forth in the petitioner's brief at 6A of our appendix to that brief, on its face and as construed by that court, is a final determination.

It is the sole and exclusive function of the jury in the state of Mississippi to ascertain and determine the appropriate sentence in a capital case.

The argument here that they were not the final determiners of that sentence is simply false.

Moreover, it was false also in suggesting to the jury that someone else shared the responsibility which under that state statute is solely and exclusively theirs.

Unidentified Justice: Mr. Boyle, in your view, would it be error or a violation of due process for a court to instruct a jury correctly and accurately concerning the existence and scope of appellate review?

E. Thomas Boyle: It would not, Your Honor.

However, I respectfully submit to the Court that it would be a much different case for this Court to consider were it not for the fact that counsel here argued in addition to the review element the fact that it was a non-final judgment.

Secondly, we maintain that the argument by the prosecutor unconstitutionally diminished the jury's responsibility for imposition of the death sentence.

The remarks here were intended to overcome the jurors' natural reluctance to return a death sentence by diluting their responsibility for the consequence of those actions.

The dissent below pointed out that a juror in deliberation is going to be... feeling that death is an inappropriate sentence, is simply going to be much less likely to hold out in the event that he or she knew that any error could be corrected in connection with an appeal.

This Court in the Witherspoon case admittedly in a totally different context indicated that it is a fundamental guarantee of due process that the decision as to whether a person lives or dies must be made on scales that are not deliberately tipped toward death.

We respectfully submit to this Court that the prosecutor's argument here encouraged the jurors to err on the side of death with the false assurance that if death is not appropriate, the Supreme Court will correct that error.

The verdict based on such remarks is one in which the jurors' moral responsibility is diminished to unconstitutional proportions.

I would like to briefly discuss the California against Ramos case, which we submit is simply not controlling in this case, and we make that argument for the following reasons.

First, in California against Ramos, this Court made it very, very clear that they were paying due deference to the state statute, the enactment by the legislature of the state of California.

Here, on the other hand, we are dealing with the remarks of a prosecutor, and although there is legislation in this area to the effect that there is mandatory review, that legislation, unlike the Briggs instructions, does not embody also the instruction that the jury be told about it.

And so we respectfully submit that that is a very, very significant distinction.

Unidentified Justice: But isn't that a state law distinction in essence?

I mean, would you say the distinction vanishes if the Mississippi legislature had said that juries ought to be told about this, and if your answer to that is yes, why isn't the Mississippi Supreme Court a perfectly good spokesman for state policy, just as the legislature would be?

E. Thomas Boyle: If we are talking just about that element, that would be a matter for the state to determine and so advise the judges of the trial courts that this is a matter for particular instruction for the jury.

We have the element in this case, Justice Rehnquist, of a misleading statement in addition to the comment and interrelated to the comment on judicial review.

Unidentified Justice: But I thought your point that you were just making had nothing to do with the misleading character, but had something to do about articulated state policy.

E. Thomas Boyle: There is another reason with regard to the state policy why it would not be admissible, and that is, this Court made it clear that under California law in the Ramos case evidence was permitted on the factor which this Court equated with future dangerousness as being a question of fact, and evidence was admissible with regard to that element, and counsel could comment on it.

You don't have that situation here.

Here you have the unmitigated, I submit to the Court, danger of speculation solely on what these nine Justices of the Mississippi Supreme Court will do, and I submit that the arbitrary and capricious nature of that speculation is no more visible in this case where you have this four to four split which affirmed and one judge disqualifying, and then, as we pointed out in our brief, at a later time the judge who disqualified himself actually joined the dissenting opinion here to make it the majority.

Unidentified Justice: Then you are saying, I guess, that a state supreme court is not to be given the same deference as a state legislature in speaking out on a matter of state policy.

E. Thomas Boyle: I don't think we are saying that at all.

It is just that there are factors here that were not present in the Ramos case that make Ramos not controlling in this particular situation.

If Your Honor is positing the question whether or not in the event that the Mississippi Supreme Court in their infinite wisdom decided to permit comment on non-review, I would first of all take the position that it shouldn't be done by the prosecutor, and if it is going to be done, as it was done in the Ramos case, it is an instruction by the Court.

But that really is a hypothetical which has been decided by the Mississippi Supreme Court which has said, we don't want this statute to go to the jury.

So that is the state of the law today in Mississippi by virtue of cases which came after the Caldwell case.

Lastly, we would argue that under the Woodson against North Carolina standard, the speculation here and the remark by defense counsel simply diverted the jury from considering the nature of the offense and the individual characteristics of the offender, which really are the true focus and the constitutional obligation of a jury to consider.

We maintain that there was no invited error.

This Court decided the Young case.

Just last week it was handed up.

And I respectfully submit to the Court that it made it clear that the invited reply theory as far as prosecutorial argument is a response in kind, and here there is simply no response in kind.

Unidentified Justice: Mr. Boyle, do you read Young as being a constitutional decision?

E. Thomas Boyle: I read it as... we were dealing with... the Court was dealing with a federal prosecutor in that case.

I believe they were dealing with the due process clause.

Unidentified Justice: Does the opinion cite the due process clause.

E. Thomas Boyle: I haven't got it with me, Your Honor, but it dealt with--

Unidentified Justice: I didn't think it did.

E. Thomas Boyle: --I stand corrected.

One of the arguments we are making here, and it comes in the third part, is dealing with plain error, which perhaps is more appropriate with regard to that aspect of the opinion, but the point that I am trying to make here is that there must be a response in kind, and I submit that there is no response in kind here.

What the court seized on, the majority seized on in this case was that they had argued imprisonment for the rest of his life.

Comments by the prosecutor actually... he used the exact same term, and it is the only statutory alternative that an attorney has to argue to a jury, and I submit that that simply is not invited error, and there is simply no response whatsoever.

Lastly, with regard to this issue, this Court decided Ebbits against Lucy last month, and we call that to the Court's attention with regard to the respondent's argument that there is an adequate independent state ground here for the decision.

I believe that under Lucy the failure by the assigned appellate counsel in this case to claim this as error would prevent the court, the Mississippi Supreme Court, from reaching the merits with regard to that issue, and accordingly we submit that it is not an adequate state ground, and that this Court should consider the merits of the issue.

I would lastly point out on this issue that the Mississippi Supreme Court in effect waived Rule 6B because they invited counsel prior to the argument to address that issue in oral argument.

They accepted briefs on it, and in fact they did deliberate and reach a decision on that issue.

And so I think under Lucy and under just the general law the adequacy of an independent state ground, being itself a federal question, that should not be a bar here.

Unidentified Justice: Do you think there was any indication in Ebbits against Lucy, first of all, that it extends to other experts other than the psychiatric help, and secondly, do you think that there is any indication in it that a state can't have a rule that says the defense has to specify the cost in any event and make the other showing that the state thinks would be necessary?

E. Thomas Boyle: I don't see the applicability of Ebbits at all.

Now, Justice O'Connor, we are getting into the second phase of our argument.

I only see Ebbits against Lucy as bearing on the issue dealing with whether or not there is an adequate state ground by virtue of counsel's failure to comply with Rule 6B.

If I may go into the facts with regard to the second issue under the Sixth Amendment, there was a pretrial motion for a psychiatrist, a ballistics expert, a fingerprint expert, and a criminal investigator.

The request for a fingerprint expert in the Mississippi Supreme Court below was treated as a request for an expert with regard to the foot cast evidence, and I would urge this Court to do so, and the respondent urged the Mississippi Supreme Court to do so, I believe, in their brief, and that has been the way the case has proceeded.

The order notes that the claim for all these experts, including psychiatrists, was made in order to establish an adequate defense, and they appointed, the Court appointed its own expert in the area of psychiatry and then denied the application with regard to the other experts, and they did so, and I quote, "based on recent Mississippi cases", and that is a question as to what they were referring to.

At the trial, these experts, there was a ballistics expert called by the prosecution, and he testified in assisting the government to make out their prima facie case.

The same way with regard to the foot cast expert.

They tied the bullets taken from the deceased with the gun taken from the defendant at the time, and likewise the boots that the defendant was wearing when he was arrested were connected with footprints near the scene of the accident.

There was cross examination which only really further bolstered the claim with regard to the strength of the ballistics testimony.

On summation, the prosecutor highlighted the ballistics testimony and then he even went so far as to note to the jury that it stood unimpeached.

Unidentified Justice: Wasn't this a case where there was an eye witness?

E. Thomas Boyle: There was an eye witness.

We don't suggest, Justice Rehnquist, that there was not other evidence in connection with the prima facie case.

There was an eye witness, and there was a glove that was also found near the scene of the crime which had been caught on a barbed wire fence.

There was also... and the matching glove was found in the defendant's possession.

There was also a confession in the case.

However, we maintain that this is one of the pieces that the prosecutor used to establish his prima facie case.

The Mississippi Supreme Court with regard to this issue sustained a request... the denial on two grounds, first, that under the United States Constitution, defense was not entitled to these services, and secondly, on the ground that they had failed... that defense counsel had failed to itemize the specific costs and the purpose and the value of these.

We respectfully submit to the Court that the second ground deals with the state's reimbursement statute, which we maintain is inadequate on its face.

The respondent takes the position in this Court that he doesn't seek to sustain the Court's decision at all on the constitutional issue.

They concede that, and they concede that there is a due process right to experts in this area.

I submit to the Court that that concession is made in an effort to attack the petitioner's case in an area where they consider it to be weak and vulnerable, namely, the failure to sufficiently specify costs.

However, we respectfully submit that because of the statutory scheme and the unconstitutional... the inadequacies of that statutory scheme, that the application cannot be fairly judged under that, and that the case should be vacated and remanded.

Unidentified Justice: Mr. Boyle, is there anything in the cases from this Court that you find that say a state cannot require as prerequisite the appointment of any expert--

E. Thomas Boyle: No, there is not.

Unidentified Justice: --witnesses that there be a threshold showing of need and cost and so forth?

E. Thomas Boyle: There is not.

Justice O'Connor, the law in Mississippi, however, has never recognized a due process constitutional right to these services.

Unidentified Justice: Why does it need to?

Maybe it wants to offer them whether or not the Constitution requires it, and if so, why can't they have a reasonable rule requiring a threshold showing?

E. Thomas Boyle: The problem here is that they are construing... let's say that there's a statutory right, and that is what the respondent says here.

In an appropriate case, there is a statutory right under our reimbursement statute.

First of all, that statute is being construed from the point of view that there is no constitutional right in this area.

Secondly, it is inadequate and defective on its face for the following reasons.

First, it doesn't provide for an ex parte application, and there are certain constitutional problems that arise from that.

In other words, defense counsel, in order to make this application, has to go to the judge on notice, and this was done in this case, on notice to his adversary, and say, I would like to call an expert in this area.

They have to tip off their defense.

And there is no similar requirement for a non-indigent to do it, and so we maintain that there is an equal protection problem with that, because it is creating a classification between indigents and non-indigents.

In addition, under Wardius against Oregon, which is the reciprocal alibi statute which the Court considered, the Court said that under due process you can't have discovery on one hand and not reciprocal on the other, and we submit that the government or the state isn't obliged to make any--

Unidentified Justice: Aren't requests by indigent for counsel to represent them matters that are made with notice to the other side?

E. Thomas Boyle: --I don't know if I understand your question.

Unidentified Justice: You said that the problem is that there can't be an ex parte proceeding, and requests by an indigent for counsel aren't done in an ex parte setting.

E. Thomas Boyle: That doesn't have to do with secrets of the defense, or strategy of the defense is probably a better terminology.

The mere fact that an attorney is appointed for someone which under the law is his constitutional right in no way indicates to the government or to the state in this case what the strategy of defense counsel may be at the trial.

However, when you come into court and you make a request for an expert, and you want a foot cast expert, and maybe he wants a criminal investigator, or maybe he wants something that the state isn't even going to call, and he has got a good reason for it.

We respectfully submit that that is imposing a burden on an indigent defendant in a state trial to disclose items of his defense strategy, and there is no reciprocal obligation on the part of the state.

Unidentified Justice: Even if your contention were to be upheld, wouldn't you still have an equal protection claim?

A wealthy criminal defendant can get all the experts he wants without petitioning the court.

E. Thomas Boyle: That is exactly what my point was.

There are two constitutional problems with it.

One is the Wardius against Oregon due process question of non-reciprocal, and the other is the classification that this creates, because any non-indigent can get any expert that he wants.

Unidentified Justice: But your solution suggests that perhaps to me your definition of the constitutional right is overly broad, because if the defendant is going to have a claim that I have to petition the court to get experts, and the wealthy defendant doesn't have to fool around with a court at all, then the only answer is simply for the legislature to appropriate each year about $5 million or $10 million for whatever services criminal defendants may want, and I dare say there aren't many courts that would sustain that sort of a claim.

E. Thomas Boyle: Well, call to the Court's attention, Justice Rehnquist, the federal legislation in this area, not that it is constitutionally mandated by virtue of the fact that it comes from Congress, obviously, but this has been interpreted, and I believe that there are serious problems which arise if you are going to make defense counsel in an indigent case tip his hand and put his adversary on notice, this is the very heart of our criminal justice system.

This Court went to great expense in the Cronic case to say that this adversary system is essential to rooting out the facts, and if you are going to require defense counsel representing an indigent to make this kind of disclosure and not make a reciprocal obligation, I think you run into due process problems--

Unidentified Justice: Mr. Boyle--

E. Thomas Boyle: --and I think that is exactly why Congress enacted 18 USC 3006 AE, which is the applicable statute, and expressly provided for ex parte application, and that is the rule in the federal courts.

Unidentified Justice: --Mr. Boyle--

E. Thomas Boyle: Justice Marshall.

Unidentified Justice: --I don't understand this tipping your hand.

You have to tip your hand when you ask for a lawyer, don't you?

Number Two, you don't think there is any requirement other than for the defendant to ask for a particular expert.

That is all required.

E. Thomas Boyle: No, I think there is more--

Unidentified Justice: What else would you require?

E. Thomas Boyle: --I think there is more to it, but I think in this case, Justice Marshall, that the statutory requirement is intertwined, inseparably intertwined with the constitutional issue, and I believe that the state--

Unidentified Justice: What more would be required?

E. Thomas Boyle: --I believe that the state interprets that reimbursement statute without recognizing rights in this area.

It is a matter of grace.

Unidentified Justice: Did I understand you to say that the Court really said, you aren't entitled to it, but anyhow the state keeps you from getting it?

That is stretching it a little, isn't it?

E. Thomas Boyle: It is solely a matter of statutory grace or discretion.

Unidentified Justice: Well, would you have to get an expert on fingerprints, too?

E. Thomas Boyle: In the event that--

Unidentified Justice: Yes, in case his fingerprints are used, would defense counsel automatically get an expert on fingerprints?

E. Thomas Boyle: --I don't think that it would be automatic.

I believe that the states--

Unidentified Justice: Well, what other than automatic?

How much more than automatic?

E. Thomas Boyle: --I believe in this case that it was self-evident from the fact that the prosecution was using a fingerprint expert.

I think it was self-evident that there was a reciprocal need here by the defense.

Unidentified Justice: Have you ever seen a case involving fingerprints where the government didn't put an expert on?

E. Thomas Boyle: Well--

Unidentified Justice: Ever?

E. Thomas Boyle: --They certainly did here.

Unidentified Justice: The first thing the defendant would be up yelping that you can't put them on without an expert, wouldn't he?

E. Thomas Boyle: I think certainly in a case where they have relied on an expert, that it is a reasonable request, not only to call an expert on one's own behalf, but also to effectively cross examine.

Unidentified Justice: One final question.

You want the same rule as in a regular case where you have a wealthy defendant.

Suppose a wealthy defendant brings an expert from London.

Would you in the next case be entitled to that expert from London?

E. Thomas Boyle: Obviously, the answer to that is no, Justice--

Unidentified Justice: Well, where is your... I am trying to find out what--

E. Thomas Boyle: --Justice Marshall, we are talking about very, very fundamental concepts of justice here.

Unidentified Justice: --I assume that all constitutional claims are fundamental.

E. Thomas Boyle: In the event that this Court were to acknowledge in this case that there is a constitutional right in this area, perhaps questions like that would arise, and undoubtedly they would, but we are dealing with a situation--

Unidentified Justice: Would we need some help from defense counsel?

E. Thomas Boyle: --As far as--

Unidentified Justice: That is what I am asking.

E. Thomas Boyle: --I certainly think you do.

Unidentified Justice: Why don't you give it to me?

E. Thomas Boyle: We are dealing here with an application which I submit to the Court it was obvious on its face that the prosecution was relying on experts, and for that reason the Court should have been aware of the value of experts in this area.

I acknowledge, as I have to, that perhaps in retrospect if this application were redrafted, it could be somewhat more specific, but I submit that that is not a defect in this case, and if I could just make one other point with regard to the reimbursement statute, it imposes the obligation on its face on defense counsel to reach into his pocket and put the money out.

And that creates all kinds of problems, because maybe defense counsel isn't willing to risk the fact that the trial judge when the case is all over may disallow that expense, and I simply don't think that this is a burden that properly should be placed on the individual counsel.

There is a case that my adversary cites, the Ruffin case, where--

Unidentified Justice: In this case, did the judge ask counsel to put the money up?

E. Thomas Boyle: --No, he did not.

Unidentified Justice: Well, how is it here?

E. Thomas Boyle: But the Mississippi--

Unidentified Justice: How is that point here?

E. Thomas Boyle: --The Mississippi Supreme Court in Ruffin, in denying the authorization on appeal, indicated that if this was so important, then why didn't counsel go out and fund raise for $500 to bring in the expert, and they accused the defense counsel of sand bagging the court to try to get reversible error.

This is the... I simply point it out because this is the way that statute is being interpreted.

Unidentified Justice: If we take that out of the opinion, will you be satisfied?

E. Thomas Boyle: No, the statute on its face--

Unidentified Justice: You can't do it.

You don't appeal opinions.

You appeal from judgments.

E. Thomas Boyle: --I am just pointing out, Justice Marshall, my point is, the bottom line, that the statute for implementing any statutory right is defective on its face and defective as applied here.

Thank you.

Chief Justice Warren E. Burger: Your time has expired now, counsel.

Mr. Boyd.

ORAL ARGUMENT BY WILLIAM S. BOYD, III, ESQ., ON BEHALF OF THE RESPONDENT

William S. Boyd Iii: Mr. Chief Justice, and may it please the Court, initially I would like to briefly summarize the state's position on the three issues that have been raised in this matter.

The initial question, of course, concerns the propriety of advising the jury of a condemned prisoner's right of mandatory appellate review.

State court resolution of this issue rested upon two grounds.

The first was procedural, the second substantive.

While we feel that the ultimate resolution of the issue was based on independent and adequate state grounds, that is, state procedural grounds, we shall concentrate our comments this morning upon the substantive aspect of the issue.

Within this regard, while the Mississippi Supreme Court divided four to four over the state's argument, it unanimously concluded that this Court's decision in California versus Ramos was the benchmark from which they must work, and that the ultimate resolution of the issue was a question of state law.

The second, the denial of expert and investigative services, it is the state's position that a defendant does not have a constitutional right to expert or investigative assistance simply upon demand.

He must demonstrate to the trial judge that the services requested are both necessary and reasonable.

And as for the third question, the confrontation issue, we note that there was no objection to a portion of counsel's argument identified in the briefs, and that the issue was not raised on direct appeal in the Mississippi Supreme Court.

The issue is clearly barred under state law, and we suggest that this Court's recent case in United States versus Young is more or less dispositive of the issue.

Within this regard, we suggest that certiorari has been improvidently granted on that particular issue.

Now, directing our comments to the closing argument question, we note that in particular there was nothing really per se objectionable to defense counsel's comments during closing summation.

However, both the trial judge and the assistant district attorney were both of the opinion that the argument left the jury with the impression that once a sentence of death was returned, nothing could be done to correct it.

I believe the way that the assistant district attorney termed it, that they were going to take the defendant out the front door and string him up at that point in time.

The Mississippi Supreme Court or his Court has basically... has consistently held that based upon principles of comity and federalism, in particular the case of Donnelly v. DeChristoforo, review is limited to determine whether the arguments of counsel in state court cases render the trial so fundamentally unfair as to deny the defendant due process.

Within this regard, we note three major points that this Court has in the past identified in questions concerning state court closing argument.

This was also recently stressed in the recent case of United States versus Young.

And that is, arguments must be viewed or reviewed within the totality of the circumstances of the case.

Unidentified Justice: Mr. Boyd, may I ask you one question that just occurred to me?

The administration of the death... capital punishment is often criticized because of the great delay that elapses between the imposition of the sentence and the carrying out of the sentence.

Do you think it would have been prejudicial to the prosecutor if the jury had the impression that the sentence would be carried out in a very short period of time?

William S. Boyd Iii: I am not sure that I understand your question, Your Honor.

Unidentified Justice: Apparently the response was needed, as I understand kind of the preliminary comment you made, because it might have been harmful to the prosecutor's case if the jury thought they were going to take him right out immediately and implement the sentence.

Is that your view, that the jury would have a distorted view of the case and it would harm the prosecutor to think that that sentence would be carried out promptly?

William S. Boyd Iii: Your Honor, I am not so sure that it would have harmed the state's case.

I think what, in my impression of reading the closing argument in this case, was that the state was simply trying to inform the jury or advise the jury that death would not be administered in an arbitrary and capricious fashion.

There was a good bit of discussion by state's counsel in this matter concerning the state of the law prior to this Court's decision in Furman v. Georgia, that in essence what we had was an automatic imposition of death with basically a mercy clause, that then the state's counsel went in and discussed this Court's decision in Furman, noting that the Court had found those statutes that existed at that time were arbitrary, that death was administered in a capricious fashion and what not, then.

The Court came down... the state's attorney noted that the legislature had undertaken to enact new statutes dealing with this question in order to funnel or to guide the jury's discretion to take the arbitrary aspects or the capricious aspects out of imposition of death.

He then went into this Court's discussion or this Court's decision in Gregg v. Georgia and Proffitt v. Florida, and one thing that I think is a key point to his argument was that he stressed, and there are a number of instances in his closing argument where he stressed that it was the jury's determination that this Court had made its decision in Gregg and Proffitt to the effect that it was the jury who was to decide what the particular or what the appropriate punishment would be under the circumstances of the case within a channel of guided discretion, as the Court has discussed.

Unidentified Justice: But all of that just suggests to me that there was really no need to respond to what the defense counsel said, that basically it was a jury decision.

William S. Boyd Iii: From my reading of defense counsel's closing argument, I got the distinct impression, especially when they started talking about the poem that was written by the prisoner in Georgia prior to being executed, that in essence what defense counsel was saying, he was trying to put the blood of this man on the jury's hands, was in essence what they were doing.

The argument that was given by defense counsel in essence said, if you return this verdict, you are going to kill the man.

They are going to take him out the front doors of the courthouse and they are going to string him up in front of the courthouse.

And of course no juror wants this particular burden upon his conscience.

Unidentified Justice: Suppose he argued that if you find him innocent nobody can kill him?

William S. Boyd Iii: Well, we had already passed the guilt-innocence phase at that particular time and were in sentencing.

Unidentified Justice: But that would be all right, wouldn't it?

William S. Boyd Iii: Yes, of course, that is true, that if a life sentence was returned, then of course no one could execute him, but what... our position in this matter is this, that there are a line of cases, particularly emanating from the state of Lousiana, cases such as State v. Berry, State v. Matheson, State v. Monroe, and this Court's decision is Maggio versus Williams, wherein it was discussed a dichotomy more or less or a dual system that they have developed in Lousiana, and that is where the closing argument is addressed to dispelling in the jury's minds the question of arbitrary imposition of death, then such an argument is appropriate under the circumstances.

Unidentified Justice: Well, do you concede that the state in any event has no right to make an argument that is misleading on the law?

William S. Boyd Iii: Oh, I think that's clearly what the law is, that the state cannot make a misleading argument.

Unidentified Justice: All right.

So isn't the real question whether it was misleading or not?

Isn't that what we really have to focus on?

William S. Boyd Iii: Yes, ma'am, I think so, that--

Unidentified Justice: And the question there is whether the prosecutor's remarks indicate that the jury's verdict if they impose death will be automatically reviewed in all its aspects?

William S. Boyd Iii: --Well, I think there is a greater question that we have to answer first, and that is whether this is a matter of state law or whether or not this is a matter of constitutional law.

I would invite the Court's attention to the fact, as Mr. Boyle commented on, that there had been two subsequent decisions to Caldwell dealing with this particular issue by the Mississippi Supreme Court, that of the case of Wiley v. State and the case of Williams v. State.

In both of those cases as well as all eight Justices in this particular case have noted that this is a question of state law, that in Wiley and in Williams they have exercised their supervisory powers, and now prohibited arguments of this nature.

Unidentified Justice: It is your position that it does not violate the federal Constitution for a prosecutor to make a misleading argument to the jury?

Is that your position?

William S. Boyd Iii: No, ma'am, that is not my position.

My position is that under Donnelly v. DeChristoforo, that this Court made it rather clear to the effect that unless there is a violation of a specific constitutional right, or that the state's arguments are spurious or false, that those are the bases upon which reversal will be predicated.

I would assume that a misleading argument would in that nature be false or spurious.

However, we do preface it with this, that this argument was not, was not misleading.

It did accurately state what the law in the state of Mississippi was.

The Assistant District Attorney told the jury that it was their responsibility to return a verdict of death, that they were the only ones under state law who could do that.

However, he did add to that that it would be reviewed by the Mississippi Supreme Court, and of course under state law the Mississippi Supreme Court does have the right.

Unidentified Justice: Reviewed for what, I guess is the question.

William S. Boyd Iii: For what.

There are a number of items.

They were outlined in the case of Williams v. State.

Basically they are this.

There are three of them.

The court must in performing what we refer to in state law as proportionality review or mandatory appellate review, one, whether the sentence was imposed under the influence of passion, prejudice, or other arbitrary factors, two, that the evidence supports the aggravating circumstances, and three, that the sentence is not excessive or disproportionate.

Within this regard, the Court is authorized to remand to the trial court for modification of sentence to life imprisonment.

They have done so in at least two cases... three cases.

Pardon me.

Now--

Unidentified Justice: Mr. Boyd, may I ask, what do you interpret the significance of the dissenting Justices' comment that even a novice attorney knows that appellate courts do not impose the death penalty, they merely review the jury sentence and that it reviews with a presumption of correctness?

I read that to indicate that his view was that the prosecutor's argument did not make a full and accurate statement of the function of the reviewing court.

William S. Boyd Iii: --Your Honor, I think--

Unidentified Justice: And I don't think the majority disagreed with them.

William S. Boyd Iii: --That is a difficult thing to explain, in that that particular court in the case of Edwards v. State did exactly that, that we had a jury determination that Hezekiah Edwards should be sentenced to death.

In that particular case, the evidence was clearly that the man was not suffering from psychosis.

However, the Mississippi Supreme Court, in reviewing that matter, determined that they did not agree with the jury verdict, vacated the sentence of death, and sentenced Mr. Edwards to life.

Now, there are comments in this particular matter that I don't particularly understand.

Some of the comments made by the dissent I don't particularly understand, but mine is not to know exactly what they are talking about in the matter, just to argue the cases before them.

Within this regard, the question as to diminished responsibility we suggest that this Court's recent decision in Wainwright versus Witt and the decision in Donnelly v. DeChristoforo mandates that deference be given to the trial judge's determination as to what was said.

The trial judge in this particular case felt that defense counsel's closing arguments were misleading to the jury, and instructed the assistant district attorney basically to straighten the matter out, and this is what he attempted to do, to address the question as to whether or not the defendant would be taken out the front of the courthouse and there summarily executed.

A corollary to this is a case which is currently pending before this Court on certiorari, the case of Booker v. State, wherein defense counsel is the one that got up at the initiation of the proceedings and started talking about let's go ahead and sentence this man to life, because we have all of these multiple appeals that we are going to go through in this matter.

Likewise, in this particular case, defense counsel discussed at great length this Court's decision in Furman v. Georgia, and noted that the Assistant District Attorney would probably address comments in that direction.

So I think that we do have something here that both the Mississippi Supreme Court in its supervisory capacity and the lower trial court found not to be particularly objectionable under the circumstances.

Addressing the second point in this matter, the expert witness question, there are several things that we need to, I suppose, straighten out in this.

There have been three recent decisions by the Mississippi Supreme Court on this particular point.

Ruffin v. State, which is cited at length in our brief, DuFor v. State, and Billiot v. State.

Billiot v. State gives a rather protracted recounting of the history of this particular point in the jurisprudence of the state of Mississippi.

Likewise, DuFor v. State recognizes the particular special aspects that psychological or mental health professionals play within the context of the criminal proceeding.

Historically speaking, Mississippi has recognized the right of an indigent offender to expert and investigative services.

And it consistently held that the determination of whether to provide such services must be made on a case by case basis.

Here, we would note in particular one thing that I don't know has been made abundantly clear, and that is that Mr. Caldwell did have the assistance of a psychiatrist in this matter appointed at state expense to the tune of $70 per hour.

That was Dr. Allen Battle of Memphis, Tennessee.

Not only did he have that, but prior to trial he was sent to the Mississippi State Hospital at Whitfield, where he was examined there by the staff at the state hospital.

Apparently counsel chose not to use these professionals that were given to him for these particular purposes within this case.

Substantively speaking, and this is something that the petitioner has attacked rather particularly here, and that is Section 9915.17, the authorization for retention of these services, Billiot v. State speaks to the particular question as to whether or not this statute is applicable, and found that it has been so.

However, the court by judicial definition has impressed upon the statutory authority the requirements that the defendant on a motion to the court, one, outline the specific cause that will be involved... in this case it was $70 an hour by Dr. Battle... two, the purpose of the services, why do you need these services, and three, the value of the proposed testimony of the defendant.

Now, in this particular case we must remember several things.

One was that defense counsel never told the court who he wanted retained as a footprint expert or who he wanted retained as a ballistics expert.

So there the court was confronted with a situation where there was no indication as to what witness expert the defendant wanted in this regard.

I think that within the overall constitutional context, and while I often times do not agree with this organization, I find myself agreeing with it in this particular case, and that is the American Civil Liberties Union, in their brief to this Court in the case of Eit v. Oklahoma.

And Footnote 22 of their brief in that particular matter I think adequately summarized what the law was.

Our submission is not that state paid experts should be made available to indigent defendants on demand, or that the Constitution requires the state to provide indigents with the same quantum of assistance that a millionaire might choose to mobilize for his defense.

We suggest that the Criminal Justice Act's constitutionally grounded standard of assistance necessary to an adequate defense and the workable criteria developed by the federal courts and by many state courts operating under similar statutes to implement that standard may be appropriately applied to implement the constitutional guarantee of due process.

In the recent cases of Ruffin and Billiot, the Mississippi Supreme Court has recognized that a due process standard does exist.

However, it has still maintained that the principles that were announced in Bullock v. State and the earlier cases were still applicable in that you had to outline the costs, state the purpose of the services, and the value of the proposed testimony to the defense.

Now, in this particular case, as to the ballistics expert and the fingerprint expert or footprint expert, the necessity of these services has not been shown.

The man confessed, the petitioner in this case confessed to shooting the victim twice in the head.

He confessed that he walked to the store across the pasture, and he confessed that he walked away from the store across the pasture.

Consequently, to be frank with the Court, the expert services that were used by the state in this matter were frankly immaterial.

Where you have a confession that the man did it, and the confession is not questioned before this Court, I see no necessity for these particular services.

Unidentified Justice: But can't the defendant say that if a state has sufficient doubt about the other evidence that it is going to call a ballistics expert that the defendant is entitled to call one, too?

William S. Boyd Iii: No, sir.

I don't think that that is a proper standard.

The Eleventh Circuit in particular has developed a particular line of cases which say that where the state has expert witnesses available for the defense to talk to, to examine prior to trial, and things of this nature, and where there is no showing that those particular experts are biased toward the defendant or are particularly not... will not consult with them and things like that, that that may be of some significance, and may necessitate the appointment of additional experts.

But unless we are dealing with a crucial point of evidence, that is, where it is the pivotal point of evidence within the case, I do not think that the Constitution mandates that such an expert be appointed for defense counsel purposes.

Likewise on the investigative assistance question, we note that under the Criminal Justice Act, there is a $150 maximum ceiling placed on investigative services.

Within this regard, the advisory committee on the Criminal Justice Act has recommended to this Court that such services be sparingly used, and that they be viewed with great... graded severely.

In this particular case, there were 35 witnesses, and the motion noted that the state had 35 witnesses that they would call.

However, we would note from the record that both counsel were appointed for the petitioner in this case on March the 23rd, 1981.

The names and addresses of these particular witnesses were provided to counsel eight days later.

The matter was called for trial some seven months later, in October.

Consequently, there was a tremendous amount of time between the actual appointment and the time of trial.

Likewise, we would note that prior to trial, the trial judge directed the state to provide defense counsel with copies of the initial investigative interviews in these cases, and counsel had that in order to cross examine the particular witnesses.

We would more or less rely on our brief on the third question in this matter, and if the Court has no further questions, I will--

Chief Justice Warren E. Burger: Very well.

Thank you, gentlemen.

The case is submitted.

Your time has expired, counsel.

E. Thomas Boyle: Thank you.

Chief Justice Warren E. Burger: The case is submitted.

Featured:

Michigan v. Long - Oral Argument

Wed, 18 Feb 2009 07:11:10 +0000

Case:

Michigan v. Long

Media File:

82-256_19830223-argument.mp3

Related Transcript:

1982_82_256_argument.xml

Transcript:

ORAL ARGUMENT OF LOUIS J. CARUSO, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear arguments next in Michigan against Long.

Mr. Solicitor General, you may proceed whenever you are ready.

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

This case involves the validity of a warrantless search of the Respondent and the auto passenger part of the automobile under his control and possession prior to his arrest for possession of marijuana and of the automobile trunk after his arrest.

The two deputy sheriffs were driving south on a country road in a rural area at midnight and the car that the sheriffs were driving was passed by another automobile going in the opposite direction and was clocked by a radar device at 71 miles an hour in a 55 mile hour zone.

The car was pursued by the two deputy sheriffs with pursuit.

In about five or ten minutes they lost sight of the vehicle for approximately five or ten minutes.

They did notice the tail lights go left off of the road that they were on and as they made the turn left to follow the car they found the car in the ditch.

The front end of the car was in the ditch.

The rear end was sticking out over the portion of the traveled road.

The entire incident lasted about five minutes.

There was no other traffic that was noticed in the area.

The police car approached the car in the ditch on the passenger side and they saw Respondent seated in the driver's side of the automobile behind the wheel and was the only occupant.

Respondent exited the automobile, leaving the driver's side door wide open with the dome light on, and met the two police officers at the rear of the automobile.

At that time one of the deputies asked Respondent for his driver's license.

The deputy did not... The Respondent did not respond.

He didn't say a word, he stared, and he was asked a second time by the deputy to produce his driver's license.

After a few seconds he reached in his wallet on his person and produced a driver's license.

Secondly, the deputy sheriff asked Respondent for the certificate of registration and this is required to be produced on demand under the Michigan Vehicle Code.

Again, there was no response and a few moments of staring and the second time he was asked for the registration.

At that time Respondent made a move toward the open door on the driver's side of the car.

He... One of the deputies was behind Respondent and the other deputy was at his side.

At the time they approached the door, the deputy saw a knife, a large, folded knife in plain view on the floorboard on the driver's side next to the door that was open and in front of the front seat of the car.

Upon seeing that knife, the deputy sheriff, one of the deputies, said, hold it, and he was then moved toward the rear of the car at the side window and with his hands on the roof of the car he was patted down by one of the deputies.

The other deputy at that point in time looked into the car.

He did not enter it.

He took his flashlight and he flashed in the interior of the car and as he did that he noticed the armrest... The front seat is divided by an armrest, divided in half.

He noticed something protruding from underneath the armrest.

At that point in time, he knelt in and again examined it more closely and he flipped up one side of the armrest.

As he flipped up the one side of the armrest, he noticed that this was a pouch of a sort that was open.

He did not touch it.

He flashed a light on the object and on more close examination he noticed that there was a plastic baggie sticking out of the pouch and out of the plastic baggie in full view, without touching it, he noticed a substance that appeared to him to be marijuana.

At that point in time, he picked up the pouch.

He felt it with his hands and he felt another hard object in that pouch.

He opened it up and he noticed that the bottle had a powdery substance and there was a pill of some sort that was wrapped up in tinfoil.

At that point in time, the deputy sheriff says, I am arresting you for grass, for possession of marijuana.

Unidentified Justice: Mr. Caruso--

Mr. Caruso: Yes.

Unidentified Justice: --Do you think that the officers could have arrested the Defendant in this case for speeding or for driving while intoxicated or perhaps even for carrying the weapon which they found?

Mr. Caruso: I believe that at that time a violation of Michigan Vehicle Code for speeding--

Unidentified Justice: Before all this search occurred?

Mr. Caruso: --Yes.

He could have been arrested.

There could have been a custodial arrest because violation of speed limit is a misdemeanor.

Unidentified Justice: But, it is your position or you would concede that that did not occur?

Mr. Caruso: That did not occur.

As a matter of practice, they do not arrest for speeding violations unless it is something more in addition to--

Unidentified Justice: How about driving while intoxicated?

They don't take somebody into custody for that?

Mr. Caruso: --Well, they would have to go through a process to make a determination as to whether the party is intoxicated and then go from that point.

But, at this particular point in time, they didn't know really what they had.

They noticed a car in the ditch.

They had an unresponsive individual who appeared to be under the influence of something and they wanted to determine whether the registration to the vehicle was in the car or on his person as required by the Motor Vehicle Code.

At the time they patted him down, at the time that the saw the large knife, they picked up and they found the pouch and this sort of thing, they charged him and they arrested him and then they asked for the key, because of the deputies who looked inside had noticed that the car was in the lock position, the driving mechanism, and there wasn't any key in the ignition.

He did give one key and then he said at that time, the Respondent, that he did not have a key to the trunk.

So, the deputy walked around back of the trunk and he noticed when he looked at the lock of the trunk the lock had been punched out, there wasn't any lock there.

He was able to open up the trunk by simply inserting a small penknife that triggered the mechanism and opened up the trunk.

And, when he looked in the truck, he found two large sacks and they were split open, it was a large sack split open into two sections which appeared to him to contain again marijuana, later found out to be about 70 to 75 pounds of contraband marijuana.

At that time they patted him down a second time, they handcuffed him and took him back to the cruiser and called in a wrecker to have the car towed into the Sheriff's Department to secure the vehicle and to bring the Respondent to jail.

Now, it is our position, the State's position here, that the frisk of Respondent and the interior of the automobile under these circumstances is justified by the rationale of Terry v. Ohio.

Although Terry allowed an encroachment on the privacy rights of an individual for the protection of police officers, the frisk in Terry was for weapons that was... and was confined to the pat down of the individual's outer clothing.

Here, the search for weapons was not limited to the frisk of Respondent but extended into the passenger part of the automobile.

And, as stated in Adams v. Williams, the whole purpose of the Terry search is not to discover evidence of crime but rather to allow a police officer to conduct an investigation without fear of personal injury.

Unidentified Justice: Mr. Caruso, would you address the question of whether there is an adequate and independent state ground in this case?

There is some indication that Michigan imposes a higher standard for illegal search and seizure cases than the Federal Constitution would require.

Mr. Caruso: The Supreme Court in its decision that reversed the Court of Appeals made a reference to Article 1, Section 11 of the Michigan Constitution, but did not discuss it at any time in the opinion.

The decision was made on the basis of the 4th Amendment.

So, I would say in chief they discussed only federal cases dealing with the 4th Amendment.

Unidentified Justice: Well, they cited the Michigan Constitution.

Mr. Caruso: They did cite the Michigan--

Unidentified Justice: And the cases and statutes in Michigan and the Michigan Constitution, in fact, require a higher standard in this circumstance than would be required by the Federal Constitution?

Mr. Caruso: --In People v. Moore, a Michigan case, it was held that the particular clause in the Michigan Constitution which permits the introduction into evidence of evidence found that is not subject to the strict requirement of reasonable search and seizure is inconsistent with the 4th Amendment of the United States Constitution and, therefore, it doesn't obtain and it doesn't endure.

So, in this particular case, it was not decided on the basis of that clause in the Michigan Constitution which permits a greater latitude in the search for evidence in connection with narcotics or from an automobile.

Unidentified Justice: Well, I am not sure I understand your answer.

If the Michigan Supreme Court were to apply Michigan law, would it reach the result you are asking us to reach under the Federal Constitution?

Mr. Caruso: Yes, yes, it would.

Yes, it would.

Unidentified Justice: And, it would allow in your opinion clearly a Terry type search of the--

Mr. Caruso: Yes, it would allow a Terry type search.

Unidentified Justice: --auto interior?

Mr. Caruso: Yes, it would.

Unidentified Justice: And you base that on what?

Mr. Caruso: I base that on the proposition that the Michigan case law with reference to the reasonableness of a search really relates to the 4th Amendment of the Constitution.

And repeatedly these cases that have permitted searches of this type have relied upon the Terry rationale.

Unidentified Justice: May I ask you if you are familiar with the case of People against Secrest, a 1982 Michigan case which relied only on the Michigan Constitution?

Mr. Caruso: I am not that familiar with it, no, Mr. Justice.

Unidentified Justice: Do you have an explanation of why in this Court, in this particular case, the Michigan Court specifically said it relied on the Michigan Constitution if it didn't mean that?

Mr. Caruso: I think it was just simply... just added to it as just an afterthought.

They didn't discuss it.

Unidentified Justice: Well, didn't Justice Coleman in her dissent also say there was no violation of Michigan Constitution in her view?

She thought it necessary to address the Michigan Constitution as well as the majority.

Mr. Caruso: Well, she did find that there is not necessarily any violation of the Michigan Constitution, but just a statement in that sense and then the majority opinion that reversed the Court of Appeals did not really discuss the Michigan Constitution.

It simply relied on all of the cases, citing all the cases, analyzing the cases that dealt with the United States Constitution.

Unidentified Justice: But, of course, it did squarely say we find the violation of the Michigan Constitution.

Mr. Caruso: Yes, Mr. Justice, it did.

Unidentified Justice: And, is it not true that the text of the Michigan Constitution provision is rather different from the text of the 4th Amendment?

Mr. Caruso: There is a clause added to that that is totally different than the 4th Amendment, yes, Mr. Justice, that is correct.

Unidentified Justice: Mr. Solicitor General, you several times say the Terry type search of the automobile.

There was no automobile in Terry.

Mr. Caruso: No, there wasn't and this is what we are asking the Court to--

Unidentified Justice: Well, why do you keep saying Terry type search of an automobile?

Mr. Caruso: --I say to frisk or search the automobile based upon the Terry rationale.

It is not a Terry type search of an automobile.

The Terry type search I have reference to in using that phrase is reference to a protective search for the protection of the police officers.

I indicated in the Terry case--

Unidentified Justice: Well, they put him up against the side of the car.

Mr. Caruso: --Pardon?

Unidentified Justice: They put the man up against the side of the car and patted him down.

Mr. Caruso: Yes.

Unidentified Justice: That is a Terry search.

Mr. Caruso: That is a Terry search.

Unidentified Justice: Then you went further.

You went in the trunk, you went every place in the world except the tires.

Mr. Caruso: Well, we are asking that the Terry rationale--

Unidentified Justice: Be extended.

Mr. Caruso: --be extended to go into the passenger compartment of an automobile because on the totality of the facts in this case we feel that the police officers were justified in continuing the search into the passenger compartment of the automobile.

Unidentified Justice: What about Belton and Robbins and the cases that came after this case was decided?

Mr. Caruso: Well, in those cases I don't recall that that really involved a protective search for the benefit of police officers.

Unidentified Justice: It sure did.

I am speaking of the examination of the trunk.

Mr. Caruso: Oh, the examination of the trunk.

Unidentified Justice: Once this car was stopped, he was ultimately arrested, was he not?

Mr. Caruso: Yes.

Forgetting the interior of the car and confining to the search of the trunk after arrest, I would say that today it would governed by probable cause search based on Ross and based on Michigan v. Thomas and also based upon the Belton case, a search incident to arrest.

In this case, we relied on it, as indicated by the question presented in the brief, upon the rationale of Opperman.

But, any one of those cases would apply to the trunk search today.

There isn't any question about it in my opinion.

But, here, confining my remarks for the moment to the search of the interior of the car after the knife was found, is based upon the Terry rationale, if you please.

The Terry rationale had to do with an investigatory, a legitimate investigatory search, and the police officer in this case had found himself in a legitimate, confrontive, investigative search for speeding and for a car in the ditch.

And, the Petitioner suggests, considering the totality of the facts, that it was at night time, in a rural area, an unresponsive individual who would not respond, who made a move toward the open door of the car and found... And there was a knife in plain view.

I think that all of these factors gave rise to an articulable suspicion that would justify a fear and a concern in these two police officers.

Both of these officers had considerable experience.

One of them had had eight years service as a deputy sheriff and three years in the Police Department for the City of Detroit.

The other had had some experience and training in the Justice Department.

And both of these people have testified... It is very clear from the record that they were concerned at all times during the course of the so-called, on-going investigation.

And, as I submit, the patting down of Respondent and then taking that search from Respondent into the car under these facts and circumstances is part and parcel of a continuous investigation in one incident.

In addition to that, the reason the police officer indicated that he wanted to go into the car to examine the interior of the car, he had not yet received the certificate of registration.

He was going to allow the Respondent to go into the car... he testified to that... to get that registration of the automobile even after he had found the knife and secured the knife.

He went back in there to see if there were any further weapons so that Respondent could go back into the car to see if he could produce that certificate of registration.

But, of course, at that point in time, they lifted the armrest, they found the marijuana and the arrest was made on that basis.

And, the area that was searched was an area that has to do with which there is no great expectation of privacy.

It is under the armrest.

It is an area that could conceal a weapon.

And, as I say, the officers were bent on a very limited intrusion.

They were looking... The officer was looking only for weapons because he intended to let Respondent back into the car.

Now, insofar as the case law on this is concerned, in Pennsylvania v. Mimms this Court gave recognition to the great danger that surrounds an investigative stop by a police officer to the extent that he is permitted to order the driver out of the car.

And, if a person orders... If a police officer orders a driver out of the car, it is for safety purposes and, of course, if nothing is wrong, then he goes back into the car.

But, if there are Terry factors that come into being as in this case, the finding of the knife and under these totality of circumstances, then, of course, a search of the interior of the car before letting him back in is justified.

It is justified under the reasoning of Pennsylvania v. Mimms.

It is justified under the reasoning of the Terry case.

And, the alternative would have been, as suggested by Justice O'Connor, we could have made... The officer could have made a custodial arrest, but they don't do these things unless they absolutely have to.

But, at this point in time, when they observed the person, they were still in the investigative process that was on-going to try to determine just what they had here, a speedster, an unresponsive person, and here you have a car in the ditch.

Now, the search after arrest, it can be justified under Opperman, because there certainly isn't any pretext involved in this case because the inventory search was made at the scene.

It was made at the scene after the arrest had been made and certainly it would be justified in this case.

Unlike Opperman, the car was taken in because of the multiple traffic... parking tickets that the party had had.

In this particular case, an arrest had been made on the scene and on the spot.

And, in addition to that, as I say, I believe that the case is also governed by these more recent decisions, particularly Michigan v. Thomas.

Unidentified Justice: May I ask you, Mr. Solicitor General, one other question about our jurisdiction?

The case of the People against Secrest that I asked you about earlier says in words that the State Constitution imposes a higher standard of protection than does the Federal Constitution and that the federal cases are merely instructive in analyzing.

If that is a correct statement of Michigan law, do you think we have jurisdiction of this appeal?

Mr. Caruso: Yes, I do believe that you have jurisdiction under this... in this case simply because the Court did apply down below, and the Court did apply in the Court of Appeals the 4th Amendment and the case law, the U.S. case law, pursuant under the 4th Amendment with reference thereto; to wit, specifically the Terry case.

Unidentified Justice: You say that is true even if Michigan imposes a tougher standard than the Federal--

Mr. Caruso: Even if Michigan imposes a tougher standard, yes.

Unidentified Justice: --Well, suppose the Court had started out and said we are going... we are interested in deciding whether there was an illegal search under the Michigan Constitution and then said it might help us to decided that by talking about the federal law and they went through exactly the same discussion of the federal law and then said, as they said, we therefore conclude that the search violated the 4th Amendment and the Michigan Constitution?

Mr. Caruso: Well, under the decision... I believe it is Delaware v. Prouse.

I believe that we had a similar circumstance here before the Court even though it could have been decided on the State Constitution.

It was also decided on the Federal Constitution and the Court retained jurisdiction of that matter.

Unidentified Justice: Yes, but suppose it is clear that the state, as Justice Stevens suggests, doesn't necessarily follow... in applying its own constitution doesn't necessary follow or feel compelled by the federal rulings, have their own view of their own constitution?

That wasn't the case in Delaware.

Mr. Caruso: I don't believe it was the case here, Your Honor, Mr. Justice.

I think in this case what they did, they really applied the 4th Amendment.

Now, insofar as the 4th Amendment of the U.S. Constitution and the Michigan Constitution, they are almost identical in content except for that final clause and it says

"the provision of this section shall not be construed to bar from evidence in any criminal proceedings any narcotic drug, firearm, bomb, explosive, or any other dangerous weapon seized by a peace officer outside the curtilage of any dwelling house in this state. "

And this provision, our courts have said, matched against the 4th Amendment, has no effect.

Chief Justice Burger: Mr. Strauss is going to have the lectern next.

Mr. Strauss.

ORAL ARGUMENT OF DAVID A. STRAUSS ON BEHALF OF THE UNITED STATES

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

New York against Belton presented circumstances similar to those involved here.

Suspects were stopped on the highway.

They got out of their car and the police officer subsequently looked into the interior of the car.

The Court in Belton held that the importance of protecting an officer's safety and the need for clear understandable standards required a brightline rule that an officer may conduct a search incident to arrest in such circumstances.

The Court specifically did not inquire into the factors that Respondent and the Michigan Supreme Court would apparently make decisive here, such factors as the precise positioning of the officers and the suspects at the scene or whether there were alternative means available that the officer might have used to control the suspect.

Unidentified Justice: Well, the Belton... That Belton rule doesn't accrue until there has been an arrest.

Mr. Strauss: That is right.

It deals with searches incident to arrest, Justice, White, and this case only involves the protective search for weapons incident to a Terry stop.

Unidentified Justice: But, if this gentleman had tried to walk away shortly after the police got there but before there was anything said about an arrest, what would have happened to him in your view?

Mr. Strauss: The officer testified, I believe, that he would not have allowed him to walk away.

Unidentified Justice: So that under what we have said many times, if he can't walk away, he is under arrest.

Mr. Strauss: Well, he is not necessarily under arrest.

In this case I think we very clearly have a stop as opposed to an arrest.

The officer also testified they did not place him under arrest until he had seen the marijuana.

But, in many ways, a stop in which a suspect is not placed under arrest and in which the officers are often at the scene with a suspect for an extended period to question him is an even more volatile and dangerous situation for an officer than one in which a suspect has been fully subdued and arrested.

Unidentified Justice: The search of the trunk came some significant time after the bag of marijuana was discovered on the front seat, is that not so?

Mr. Strauss: That is right.

The search of the trunk followed the discovery of the marijuana and the arrest.

And, the search of the trunk, in our view, could have been justified under Belton as a search incident to arrest.

Unidentified Justice: I thought Belton was passenger compartment.

Mr. Strauss: It was Justice Rehnquist, but in this case we have an unlocked trunk.

Unidentified Justice: So you say that can be treated like the passenger--

Mr. Strauss: At least as accessible to the suspect as the passenger compartment.

Unidentified Justice: --Assume they discovered the marijuana in the passenger compartment and they arrest.

Wouldn't that give probable cause to search the entire car?

Mr. Strauss: I think that certainly would give probable cause to search the--

Unidentified Justice: Under... Not necessarily under Belton.

Ross.

Mr. Strauss: --If under Ross would give probable cause to search the entire car.

They could at that point searched the entire car as a probable cause search as well as a search incident to arrest under Belton.

Unidentified Justice: Yes.

Mr. Strauss: But, the initial discovery of the marijuana was the result of what one might call a car frisk, a search for weapons only in the car.

Unidentified Justice: But after that it was no frisk?

Mr. Strauss: Once the found the marijuana that is right.

They placed him under arrest.

Unidentified Justice: They could have handcuffed him?

Mr. Strauss: That is right.

Unidentified Justice: And he could have hurt whom then?

They did.

Mr. Strauss: In fact, they did at some point and--

Unidentified Justice: They could have done it before they searched the trunk and they wouldn't have had to search the trunk to find whether there were weapons in it.

Mr. Strauss: --That is right.

The search... No one, as far as I know, Justice Marshall, defends the trunk search as a car frisk, as a search for weapons.

That is a search incident to arrest or arguably a probable cause search, at least a search incident to arrest under Belton because he was under arrest at that point.

Unidentified Justice: The difference in the Belton case as I remember is there was one officer and four men, three men or something.

This is two officers with one man.

Mr. Strauss: I believe those are the facts of Belton, Justice Marshall.

Unidentified Justice: I mean, I think that two officers ought to be able to take care of one man.

Mr. Strauss: Well, that is precisely the sort of thing, Justice Marshall, as the Court in Belton refused to inquire into and I think that is exactly the sort of thing, that it is very dangerous for a court to try to assess after the fact, to go back and to say, well--

Unidentified Justice: Just leave it up to the officers.

Mr. Strauss: --Well, when the officers were acting with a reasonable apprehension of danger, as no one seems to deny that they had here, and take the step precisely analogous to what the Court said they could take in Belton in a situation that is, as I said, even more dangerous than the Belton situation because the suspect is not arrested, he is not in handcuffs, he is not held at gun point or locked into the back of the car.

Unidentified Justice: But he was told, whoa, and he stopped.

Mr. Strauss: He was told to stop and his hands were placed on the roof of the car.

But, the fact remains that the officers had reason to believe something that wasn't present in Belton.

Here there was reason to believe that there was a dangerous weapon in the car that could have been obtained by the suspect and used against the officers.

Unidentified Justice: Mr. Strauss, if the Court were to adopt this wingspan approach to a Terry search, does the expanded search of the interior of the car of necessity involve a more extensive search than would be the case for a pat down of an individual where we have said you just pat them down and see if there are weapons?

To search the interior of the car, are you talking about a more detailed sort of a search, going in the glove compartment and actually looking around, lifting up the bar in the middle between the seats and that kind of thing?

Mr. Strauss: It is an analogous search, Justice O'Connor.

Unidentified Justice: Would you concede that it would of necessity be more extensive than the pat down that we approved in Terry?

Mr. Strauss: It would be a search for weapons and it couldn't reach places where a weapon could not be concealed or from which it could not be obtained.

For example, they couldn't do what the officers did in Carroll and rip open the seats.

Unidentified Justice: Yes.

But, I assume under a Terry pat down... We have not at least said, I think, that you can pull out a little marijuana baggie if that is what it feels like.

All you can pull out is a weapon.

Now, in a search for the weapons in the interior of a car, you are arguing that you could pull out the baggie of marijuana.

Mr. Strauss: If in the course of the pat down an officer were to find an unidentifiable, unidentifiable by touch, hard object beneath the outer clothing of the suspect, yes, he certainly could reach in and pull it out and take a look at it which is all that--

Unidentified Justice: But, not a marijuana cigarette or a little baggie or something of that sort, right?

Mr. Strauss: --If it were something that didn't feel like a weapon from the outside, that is right.

And, that would be the same principle that would limit on this sort of search.

In fact... in sort of a limited search, a weapon search.

In fact, it seems fairly clear that an inspection for weapons on the inside of a car whereas the Court has held the expectation of privacy is less and many parts of which are visible from the outside by any passerby is a good deal less intrusive than having an officer actually lay his hands on the suspect's body as the Court described in Terry.

Unidentified Justice: Well, it may be less intrusive in a personal sense, but you may be able to get more objects and make a more thorough search.

Would you agree if you were to extend the doctrine?

Mr. Strauss: I think the principle, the leading principle is exactly the same, Justice O'Connor.

You can look for obtainable weapons and nothing more, but, of course, nothing less if the officer's safety is to be protected.

I think the other difficulty with the approach of the Michigan Supreme Court and of Respondent, in addition to increasing the uncertainty and danger faced by law enforcement officers, is that it would have the effect of imposing much greater burdens on suspects and of impairing values related to the 4th Amendment.

That is because if an officer concerned about his safety is unsure of his authority to conduct this sort of car frisk, a limited search for weapons, he will be forced to take other highly intrusive actions such as handcuffing a suspect or locking him in the police car through the duration of the stop or possibly even holding him at gunpoint during the stop.

And, surely, most suspects will consider these to be far more humiliating and unsettling actions than a limited weapons inspection of a car.

But, if Respondent prevails, a prudent officer concerned about both his own safety and the dictates of the 4th Amendment, will have no alternative to taking these actions.

Similarly, and Justice O'Connor alluded to this point earlier, an officer with probable cause to arrest the suspect often will merely stop him and ask him questions to see if there is some exculpatory explanation, but if the consequence... And that way he can avoid an unnecessary arrest, but if the consequence of stopping a suspect instead of arresting him, is that there is some question about the officer's ability to protect his own safety, then, of course, the officer simply will not hesitate to make an arrest and conduct a complete search, an undoubtedly more intrusive search, incident to arrest that Belton gives him the right to conduct.

Unidentified Justice: Do you think that Belton applies where the search is not a custodial arrest or where the arrest is not a custodial arrest?

Mr. Strauss: I am not sure there is--

Unidentified Justice: If the search incident in Robinson and Gustoferson applies only to custodial arrests, do you think Belton nonetheless applies across the board?

Mr. Strauss: --I am not sure I understand the difference between custodial arrests and other sorts of arrests.

Unidentified Justice: Well, I think a custodial arrest is where the police plan to take the person arrested into custody as opposed to simply give him a ticket.

Mr. Strauss: If they don't plan to take him and remove him from the scene subsequent to the arrest, I think there is some question from the face of the Belton opinion whether Belton applies to such.

Here, of course, we have a stop on the scene and where the suspect and the officers are in continuous contact on the scene and the officers' exposure to danger and exposure to hidden weapons is to that extent.

Unidentified Justice: There is the crucial question whether they do, in fact, intend to take him into custody or whether they are lawfully authorized to do it, whether they do or do not take him into custody.

Mr. Strauss: Well, for purposes of what happened in this case, even if there were certainly no probable cause and no grounds to take him into custody and only reasonable suspicion to stop him, they would be authorized in taking these limited measures necessary to protect their safety.

Unidentified Justice: Isn't it true that custody is always taken when you arrest a person?

How can you arrest somebody and not take him into custody?

Mr. Strauss: Well, that is why I asked Justice Rehnquist the question.

I don't know of any constitutional limitation in this Court's opinions.

Unidentified Justice: If it is an arrest by hypothesis he is in custody, isn't that right?

Mr. Strauss: It is a matter of definition, Justice Stevens.

Unidentified Justice: Then he may be released on sort of a "parole" to drive his own car home if he is not drunk or if he is not injured.

But, as Justice Stevens suggested, he has been arrested as soon as his liberty has been detained or interfered with, is that not so?

Mr. Strauss: Certainly it would be an odd result if the officers have probable cause to arrest him.

It would be an odd result to say that if they want to conduct a search incident to arrest they must also take him into custody even in circumstances where they would otherwise be inclined perhaps to take bail from him on the spot if that is a permissible procedure in the state.

Thank you.

Chief Justice Burger: Counsel, you may proceed.

ORAL ARGUMENT OF JAMES H. GEARY, ESQ. ON BEHALF OF THE RESPONDENT

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

This a state's rights case as well as a search and seizure case and I think that the questions that were asked of Mr. Caruso about the independent state ground for the decision were appropriate.

This Court faced the same issue in City of Mesquite v. Aladdin's Castle, a case in which seven justices agreed.

In that case it was argued that the Texas Constitution provided an independent ground for the Court of Appeals judgment and this Court determined that because that possible ground for the judgment existed this Court lacked the jurisdiction to decide whether or not the lower court had made an error in interpreting federal constitutional law.

Justice Stevens has asked about the case of Michigan v. Secrest which is reported in Volume 413 of the Michigan Reports, the same volume that this case was reported in.

It is current Michigan law and the Michigan Supreme Court plainly and unmistakably said that the Michigan Constitution, Article 1, Section 11, provides a higher standard than the standard provided by the State Constitution.

Michigan has had a long history of providing greater protection to citizens under the State Constitution than under the Federal Constitution.

Unidentified Justice: But, if that is true, as I don't doubt it is if you say it is, how does that apply to this particular case where the Supreme Court of Michigan simply mentions the State Constitution in part of a sentence and all of its analysis is in terms of the Federal Constitution?

Mr. Geary: They only mention the Federal Constitution in part of a sentence.

They mention the State Constitution three times.

Unidentified Justice: But all the cases are federal cases.

Mr. Geary: The case was Terry v. Ohio.

They talk about Canal Zone v. Bender and they also mentioned People v. Reed which is a Michigan case.

They cited that in a footnote, and People v. Reed, based on the Michigan Constitution as well as the Federal Constitution.

But, the point I was making about People v. Secrest is in that case the Court says that they use federal cases like Terry v. Ohio as a guide but they don't feel bound by federal cases in ruling on questions of Michigan constitutional law.

Unidentified Justice: Can you give us any reason why they didn't say just that?

Mr. Geary: I don't think they felt it was necessary.

I think they meant what they said when they--

Unidentified Justice: Well, didn't we ask them?

Mr. Geary: --I beg your pardon?

Unidentified Justice: Didn't we ask them the question?

Mr. Geary: No, this Court has never asked the Michigan Supreme Court--

Unidentified Justice: I think it comes up every other week.

[Laughter]

Mr. Geary: --That is true.

I think in California v. Krivda, I think--

Unidentified Justice: Don't they know the only thing they have to do is to say this is being decided on the Constitution of the State of Michigan, period.

Mr. Geary: --They didn't say that.

They said it was being--

Unidentified Justice: I know, but couldn't they have said it?

Mr. Geary: --Yes, they could have.

Unidentified Justice: And that would have been the end of the case, wouldn't it?

Mr. Geary: I believe it would have been.

Unidentified Justice: Well, how do we persuade them to say whether they do one or the other?

Mr. Geary: Tell them.

Unidentified Justice: I see.

I think that has been done on a number of occasions.

Mr. Geary: I wish they had decided it solely on Michigan constitutional grounds, but evidently the Court felt that the search was barred... as I feel the search was barred under both the federal and state grounds.

Unidentified Justice: But, if, as Justice Marshall has suggested, if the State Constitution affords an adequate ground, why isn't that the end of the case or is the Court trying to share the burden with the Federal Constitution?

Mr. Geary: I can't read the minds of the Justices of the Michigan Supreme Court, of course.

They have given no indication that they intend to share any burden.

They have said quite explicitly in a great number of cases that they regard the Michigan Constitution as--

Unidentified Justice: Well, we have reversed them often enough.

[Laughter]

Mr. Geary: --There have been many cases where you haven't reversed them.

There are many cases where Certiorari has been denied, where they have decided cases on both state and federal constitutional grounds.

Unidentified Justice: I suppose those reversals just confirm your view that Michigan takes a broader view of the protections provided by the 4th Amendment and its Constitution.

Mr. Geary: I believe that it does.

And, I have mentioned in my brief a few of the many instances where Michigan does take a broader view of citizens' rights under the State Constitution than exist under the Federal Constitution.

Getting to the question of whether or not the so-called protective search of the car violated the Federal Constitution, I think that the Michigan Supreme Court has recently shown that it recognizes the difference between the cases that are cited in the dissent in the Michigan Supreme Court and this sort of a case where there was no articulable facts to which the officers could point to demonstrate danger.

Chief Justice Coleman, in her dissent, listed a great many decisions from other jurisdictions and where searches of automobiles were upheld.

I have suggested in our brief that those cases were distinguishable on the facts.

Two days before Christmas the Michigan Supreme Court decided People v. Esters and upheld a warrantless search of an automobile and facts very similar to many of the cases cited by Justice Coleman in her dissent.

In People v. Esters, a dry-cleaning establishment was held up and a young boy who saw the crime take place wrote down the license number of the car that was involved and gave a description of the car and a description of the robber.

Within minutes the police had located the car, found it in a driveway, the license matched the description that was given.

There were wet tire tracks coming from the road into the driveway and there were wet footprints from the car into the house.

They went into the house, arrested the defendant, who matched the description given by the witness, went out into the driveway and searched the car and found a pistol that matched the description of the pistol that was used in the robbery.

And, of the six Justices of the Michigan Supreme Court who decided that case, five wrote on the question of whether or not the search was lawful and five said that it was.

And, I think that People v. Esters is like Minnesota v. Gilchrist and Uptegraft v. Alaska and U.S. v. Powless and all the other cases cited by Justice Coleman in her dissent, cases where the police officers had some specific reason to believe that the defendant was dangerous as in Uptegraft v. Alaska.

It was almost identical on its facts to People v. Esters.

In Powless, the police had received radio information describing a van that was alleged to have been occupied by armed men and one of them had an outstanding arrest warrant on him.

He was headed toward an Indian Reservation where there had been some shootings within a few days.

Some of the other cases I have mentioned in the brief are quite similar, Massachusetts v. Almeida.

They are all cases in which the police had some reason to believe that a violent crime either had been just committed or was about to be committed.

And, you contrast that case with this one, where the police officers never testified that they regarded Mr. Long as dangerous.

You won't find the word "dangerous" in any of the transcripts.

They never said they feared for their safety.

The most that either of the deputies was willing to say is they were not unconcerned about Mr. Long.

Well, one deputy said, "I didn't completely ignore him".

That was the extent of his concern about Mr. Long.

Mr. Long was cooperative.

He did everything the officers asked.

He headed for the car because they asked him to go to the car and get the registration.

Unidentified Justice: Do you feel that articulable suspicion cases turn on the subjective impressions of the particular officers involved rather than kind of an objective standard?

Mr. Geary: I think it is a difficult mix of objective standards and subjective factors.

I think if the officer does not have the subjective believe that he should be in fear for his own safety, even if some person might on the basis of the same facts, say there was an objective basis for searching.

I don't think that he could.

Unidentified Justice: Do you think our cases support you in that?

They refer to articulable suspicion and it seems to me that at least some of them don't focus on subjective.

Mr. Geary: Terry discusses the officer's well-founded belief of fear for his own safety and that is why I say I think it is a difficult mix.

I think as a minimum... I think if the officer held an unreasonable belief that his own safety was in danger the search wouldn't be justifiable.

Unidentified Justice: Yes, I think that is probably it.

But, I am not sure that the cases support you in requiring both an objective and subjective belief.

Mr. Geary: Even if that is a given, I think that the objective facts that were here... There was very little that distinguished this case from most traffic stops in Michigan.

Unidentified Justice: Well, how about the knife on the floorboard?

Does that happen every time you have a traffic stop in Michigan?

Mr. Geary: No.

The knife was not contraband.

There was no... It was a legal knife and as I mentioned in my brief there are a great many lawful articles that are commonly possessed in cars in Michigan and elsewhere that would present at least as much harm to the deputies as this knife did.

The deputies ignored the screwdriver that was in the car in their search for weapons.

The ignored a hammer.

There is a Michigan case where I have cited in my brief where a traffic detainee returned to his car and used the car to assault the officer.

And, literally, if there is a traffic stop and the justification for the so-called search, protective frisk of the car is that the detainee might return to the car and use something in it or the car itself to injure the officer, then as a practical matter you are saying that any detainee, traffic detainee that is stopped is going to have his car searched.

Unidentified Justice: Well, is that all bad when you are talking about a search for weapons?

Mr. Geary: I personally don't believe this was a search for weapons as evidenced by the fact the officers never treated the Defendant as a dangerous person and ignored very obvious tools that could have been used to hurt themselves and instead concentrated on a billfold.

Unidentified Justice: But that isn't the ground that the Supreme Court of Michigan went on, that it really wasn't a search for weapons?

Mr. Geary: No, they did not say that.

They assumed that it was a protective search.

And, the answer to your question is, yes, I think it would be bad.

I think that the framers of the Constitution had in mind the dangers of police work when they drafted the 4th Amendment.

They had long experience with smugglers, with the efforts of British revenue officers to enforce tax laws with writs of assistance, and they knew that people sometimes violently resisted the efforts of police to enforce the law and they still passed the 4th Amendment.

I think that the--

Unidentified Justice: Well, the question is whether the 4th Amendment prohibits this.

Mr. Geary: --Exactly so.

I think that this case is much more like Sibron v. New York than it is like Terry v. Ohio.

In Sibron, you will recall the Court said that a police officer couldn't just start searching for evidence.

They had to have some indication that at least... that he was actually searching for weapons.

As I just mentioned in this case, the officers gave every indication that they weren't searching for weapons.

They ignored the most obvious things in the car that were in plain view that could have been used as weapons, the screwdriver and the hammer, and instead, concentrated on a small leather object that was small enough to be placed in the deputy's back pocket which is where he put it after he picked it up.

Unidentified Justice: What did they do with the knife?

Mr. Geary: I wish I knew.

We can't find the knife.

As far as I am concerned, it still belongs to Mr. Long.

The deputy... The one deputy who went to the car first picked it up and actually held it in his hand while the other deputy frisked Mr. Long and then I believe one of the deputies put the knife in his pocket.

It was not returned to Mr. Long and it was not put in the car.

It was used in evidence at the trial, but I don't know where the knife is now.

I would like to point out that Mr. Long was cooperative at all times.

He did everything the officers asked.

They described him as cooperative.

He was not belligerent.

Unidentified Justice: Well, does the record show where he was going when he turned around and walked away?

Mr. Geary: Not very clearly.

He was still not at the doorway.

Unidentified Justice: But they had asked him for his registration statement which he didn't have.

It is clear enough that he was headed back to get it?

Mr. Geary: He didn't say anything.

He started towards the doorway.

Unidentified Justice: Do the officers say that they anticipated that he was going to go back into the car to hunt for the registration statement to see if he had one?

Mr. Geary: My recollection of their testimony is that they made no assumption as to what he was doing, just described his acts rather than... They didn't say what they thought he was about to do.

Unidentified Justice: I understood from your colleague that the testimony of the officer was that they thought he was going back to the car to find the registration statement.

Mr. Geary: Well, I can't complain... They had just asked him for the registration statement and that is the only logical explanation, but I can't recall anything in the record where the deputies specifically testified that they thought that was what Mr. Long was doing.

On the other hand--

Unidentified Justice: Sometimes people keep them in the glove compartment.

Mr. Geary: --As a matter of fact, they never did get the registration papers for this particular car.

They found the paper that showed the car was titled in someone else's name, two different documents.

They never did get the registration paper.

I might point out that under Michigan law, even if he refused... If he said, no, I won't produce the registration paper, they wouldn't have been entitled to make a custodial arrest, People v. Marshall, People v. 7th District Judge.

You are required to carry it, but they can't... They can give him an appearance ticket for not having his registration, they can't take him into custody.

And, contrary to what Mr. Caruso said, even at the time of this traffic offense, they could not have made a custodial arrest for speeding under the Michigan Motor Vehicle Act.

The citation is in the brief.

It is MCLA 257.

--I think it is 727.

They are required to give an appearance ticket unless there are some facts that weren't present here.

Unidentified Justice: What do they call it in Michigan when you stop a fellow for speeding and insist that he stay there until he gets a ticket?

That is just a detention.

Mr. Geary: A traffic stop.

Unidentified Justice: It is a traffic stop, a detention for the purpose of giving a ticket.

Mr. Geary: I think it would be pretty clear that he is not arrested as Michigan courts use that word.

If they had arrested him, he would have to comply with the Michigan Interim Bail Act which would have given him an opportunity to post bond before they could have given him the intensive sort of search that they would have done before the admitted him to the jail.

I think there are lots of state law reasons why they could not have taken Mr. Long into custody.

Unidentified Justice: Or his car.

Mr. Geary: Or his car.

I think there was even less justification for taking his car and impounding it.

They didn't have to impound his car.

They wanted to impound his car and I think--

Unidentified Justice: Even after they found marijuana in the car?

Mr. Geary: --I think that is correct.

They could have taken the marijuana and left the car.

Under... It is important to remember that they never tried to justify the search of the trunk as either a search incident to arrest or as a probable cause search.

If they tried--

Unidentified Justice: I know they didn't, but let's assume we disagree with you.

Mr. Geary: --They would have lost as a matter of state law had they made that--

Unidentified Justice: Well, let's assume that we disagree with you and that the... looking under the armrest was defensible and was not unreasonable and that finding the initial bag of marijuana was defensible and suppose he had been arrested right then, could they have searched the car?

Mr. Geary: --We would lose under U. S. v. Ross and New York v. Belton.

Unidentified Justice: And you would lose under federal law.

Mr. Geary: And I think we would win under People v. Hilber which is Michigan law which was exactly that case.

They found marijuana in the passenger compartment, wanted to search the trunk and the Michigan Supreme Court said you could not do that.

That case is also in our brief.

Unidentified Justice: Without a warrant.

Mr. Geary: Without a warrant.

Yes, they could have gone out and got a warrant.

Unidentified Justice: Does Michigan follow Carroll at all if you have probable cause to search a car?

Mr. Geary: There are some Michigan Court of Appeals cases, including some recent ones, that say that they follow Carroll.

Unidentified Justice: What does the Supreme Court of Michigan say?

Mr. Geary: I can't recall the People v. Hilber case well enough to know if they even discussed it at all.

Unidentified Justice: Well, it seems to me if you make that arrest we have just described and then say that you can't search the trunk of the car you must not follow Carroll.

Mr. Geary: I don't believe that Michigan does.

I just can't recall the opinion in Hilber well enough to say whether it does or does not.

The last point that I would like to mention briefly is the so-called inventory search.

I am not so sure how much of an issue it is before this Court, but my understanding is there are two requirements for an inventory search.

One, there has to be a search; and, secondly, there has to be an inventory.

If you don't have both ingredients, you don't have an inventory search.

This search produced no inventory.

When the deputies testified--

Unidentified Justice: I am not sure I know what you mean when they produced on inventory.

Mr. Geary: --There was no list of the things that was found in the car.

When the deputy testified at the trial, he couldn't describe accurately what was in the car.

He had a dim recollection of it.

If the excuse was that they wanted to protect themselves against crimes of theft or intrusion by vandals or that sort of stuff, it was--

Unidentified Justice: You mean they didn't write out a description of items when you say they had no inventory?

Mr. Geary: --Yes.

They didn't write out a description.

The search stopped when they found the marijuana in the trunk.

The deputy testified that he had an investigatory motive and most importantly he testified that the Barry County Sheriff's Department did not do an inventory search when he testified at the preliminary examination.

There was no standard procedure in their department for inventory searches.

It was plainly a ruse and the Michigan Supreme Court didn't reach that question because they didn't feel they had to.

Unidentified Justice: May I ask you... You may be repeating, but you said that as a matter of Michigan law the search of the trunk would have been improper under the Hilber case.

Mr. Geary: I believe that it would have, yes.

Unidentified Justice: Is that because the presence of marijuana in the car does not establish probable cause to believe there is marijuana in the trunk or assuming there is probable cause you still can't open the trunk?

Mr. Geary: I think that... My recollection of Hilber is the former, proving there is marijuana in the passenger compartment is not probably cause to believe that there is marijuana in the trunk.

Unidentified Justice: I see.

Is that a Michigan case based on Michigan law or on federal law, do you know?

Mr. Geary: I wish I had read it just before I came today.

I just really can't recall.

Unidentified Justice: Okay.

Mr. Geary: I have nothing further unless there are further questions.

Chief Justice Burger: Very well.

Thank you, Gentlemen.

The case is submitted.

We will resume arguments at 1:00.

Attribution:

The OYEZ Project

Featured:

Key v. Doyle - Oral Argument

Sun, 08 Aug 2010 19:13:30 +0000

Case:

Key v. Doyle

Media File:

76-1057_19771005-argument.mp3

Related Transcript:

76-1057_19771005-argument.xml

Transcript:

Argument of Floyd Willis Iii

Chief Justice Warren E. Burger: We will hear next in 76-1057 Key against Doyle.

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

Mr. Floyd Willis Iii: Mr. Chief Justice may it please the court.

Very briefly, I would like to mention the statement of the case to this court.

This case involves a D.C Board, main statute, Section 18-302 and that statute basically provides that a devise or bequest of real or personal property to a minister, priest, rabbi, a public teacher or preacher of the gospel or to such religious order and so on.

He is not valid unless it is made unless it is made within 30 days before the death of the testator.Sallye Lipscomb French executed a will and left religious bequest and did not survive that will for 30 days.

Thereafter a complaint for instructions was filed by Judge Doyle and the case was heard before the Superior Court on motions for summary judgment.

The religious legatees being defendants as well as the heirs at law.

The lower court found that 18-302 is in fact unconstitutional for both First and Fifth Amendment reasons.

Appeal was taken to the District Court of Appeals, that court found that the statute was unconstitutional for due process or Fifth Amendment reasons.

Unknown Speaker: And did not deal with First AmendmentFloyd.

Mr. Floyd Willis Iii: Did not deal First amendment Judge Riley filed a concurring opinion which he dealt with the First amendment.

Unknown Speaker: Are you going to sometime in your argument summarize the reasoning of the majority of the Court of Appeals as to why it violated the Fifth Amendment?

Mr. Floyd Willis Iii: Yes your honor.

Unknown Speaker: And somewhere in your argument will you discuss the jurisdictional question which you did not cover in your brief despite our rule that you last -- that it be covered.

Mr. Floyd Willis Iii: Yes, Your Honor, that was a next thing, I was going to get to now that I have.

Unknown Speaker: Was there a reason you did not cover in your brief.

Mr. Floyd Willis Iii: In inadvertence, Your Honor, it is sort of hidden way down at the bottom of one of the, one of your rules and we just did not do so.

We did a make statement that 1257 (1) is a basis of the jurisdiction but we did not argue and we apologize to the court for not having done so.

Unknown Speaker: But you knew it was there when we postponed rather than noted jurisdiction.

Mr. Floyd Willis Iii: Frankly the significance of that escaped us to and we are now prepared to argue and our argument would be very brief basically based on Palmore, that this court does in fact have appellate jurisdiction.

Because of 1257 (1) and because of the language in 1257 (1) which states that the -- for purposes of this section and I think the language must include the whole section, paragraphs, one two and three, so that the highest court of the state include District of Columbia, Court of Appeals.

And in Palmore, I believe Your Honors decided basically that since Congress had not said that the appellate right of Mr. Palmore were because the statute was in fact, made the District of Columbia equivalent to a state statute then it must follow in our reasoning that the statute is in fact a statute of United State, and were it not so, I think that the additional language that I earlier cited would have no meaning.

In addition to that, Your Honors, I feel that there are substantial Federal questions involved here and that our jurisdictional statement could be treated as a petition for writ of Certiorari.

Now with respect to the issues involved in this case, it is submitted that this statute does not infringe on the Establishment Clause over the free exercise clause of First Amendment.

At first blush it certainly appears to involve religion, the statute is directed solely at religion.

Chief Justice Warren E. Burger: Well does not it include school teachers of some kind?

Mr. Floyd Willis Iii: Well I do not think that has been lower courts opinion your honor it said.

Chief Justice Warren E. Burger: You were addressing the statute as a whole on my question goes to that, it says ministers, priest, rabbi, public teacher or preacher at the gospel.

Mr. Floyd Willis Iii: I think within the meaning of that statute and the legislative history that appears in a Congressional record that the statute is directed only at religious persons or institution.

Chief Justice Warren E. Burger: You mean public teachers of religion.

Mr. Floyd Willis Iii: I assume that is the case, I assume that someone who is not ordained what goes about preaching a religion preset.

Chief Justice Warren E. Burger: Well, then the next category preachers of the gospel would be redundant because there are lot of preachers at the gospel who are not ordained ministers, I suppose.

Mr. Floyd Willis Iii: Well that is conceivably, Your Honor, I am not totally familiar with the rules and regulations involving ordainment.

Justice Potter Stewart: I suppose if there were not a comma after public teacher, he went into -- that your attribute to the statute would be much clearer, public teacher or preacher of the gospel, that comma makes your construction of it a little more difficult or the construction that you tell us that the District of Columbia courts have put on.

Mr. Floyd Willis Iii: I think those are just consecutive statements of who the statute will applied to Your Honor and I think that is what the comma means.

Now, it certainly is something that has not occurred to us any of us before this the arguments below taken somewhat by surprised by that and I really probably do not have a good answer to it.

Justice Potter Stewart: The court in this case, that the section by its terms declare void only bequest and devises for the benefit of religious institutions or by the clergy.

Mr. Floyd Willis Iii: That is correct that has been the position of both Judge Newman and the DC Court of Appeals.

Now, the Court of Appeals decided this case only on the rationale basis doctrine.

It decided that the statute had no objective of that to extend withstand a statutory scheme that would make it consistent with the constitution.

We submit that the statute just really part of the statutory scheme involving a testamentary transfer of property.

A power reserved solely to the Courts and solely to the states and that if the statute involves religion, at all it just does so indirectly, the statute's objective is to prevent the improvident gifts to buy a testator within this very brief period 30 days, since the making of a will and I think it has two- fold and a prophylactic basis.

It is to preclude the use of undue influence by religion for a limited period of 30 days

Justice Thurgood Marshall: But anybody else can use it.

Mr. Floyd Willis Iii: Undue influence.

Justice Thurgood Marshall: Yeah.

Mr. Floyd Willis Iii: Your Honor there are abilities to prevail when undue influence has been used independent of the statute.

Certainly, one can resort to the courts and prove that undue influence would have caused a testamentary disposition and by a caveat proceeding.

Justice William H. Rehnquist: Well, I suppose the legislature might have thought that the threat of eternal damnation was a higher degree of undue influence and then the kind of influence that might be brought by non clerical people.

Mr. Floyd Willis Iii: That is exactly what we submit, Your Honor I did not understand your honor, and the other premise of the statute is preclude the unwise distribution of one's estate at the expense of one's natural heirs, again limited solely to 30 day period.

I submit that surely the effect on religion, if there is any effect at all is less then existed in Brawnfeld wherein huge merchants maintained their day work discriminated against because of their religious beliefs and they were not able to stay in the status of workings on Sunday.

The statute is not designed to punish religion in our view, or to limit religious practices or beliefs, nor it is purpose to establish or de-establish religion.

It prescribes only for a very brief period testamentary transfers and such prescription is for a legitimate state purpose that is the legitimate fear of government that there is a mischief that can be perpetrated by as Mr. Justice Rehnquist says at least more readily by a person having the ability to express to a testator, the possibility of salvation.

We submit that the statute --

Unknown Speaker: Mr. Willis what happens in this case if this will were to be --or suppose it gave the entire estate to these religious beneficiaries and that were held to be a violation of the statue, what would be happen, would the earlier wills be revived or would the decision be regarded as dying intestate.

Mr. Floyd Willis Iii: In this case the decision would clearly be regarded as dying intestate, Your Honor, the statute there is a doctrine of independent relative or dependent relative revocation which suggests that the prior will made a similar dispositive scheme then the prior will could be used rather than intestacy.

It is stipulated that the doctrine does not apply in this case.

There were two prior wills, 1960, 1963.

Unknown Speaker: Which certainly indicates how thin the statute's application to this decedent is?

Mr. Floyd Willis Iii: Well, Your Honor the statute is not so thin because she did not in fact make the same sort of religious bequest in her prior wills, only in the will in which she failed to survive for a period of 30 days did which she make a substantial residuary bequest to religious institutions and actually she made those bequest to three religious institutions, John Hopkins University although it is not a church as such it is run by the church and maintained by the church and there has been some -- and as the Court of Appeals and District of Columbia said legal ledger domain that has enabled the statute to be gotten around on occasion by declaring that a bequest to a charitable institution which is owned and run by a religion is not the same as a bequest to a religion per se and much emphasis is put on that by the Court of Appeals of the District Columbia.

Unknown Speaker: In fact the statute is to avoid only so much of the will as devises the bequest to the Church or clergy, is it not, it is does not avoid the whole will if there were independent bequest.

Mr. Floyd Willis Iii: No only the bequests are declared to be invalid, those bequest to religious persons institutions etc.

Justice Thurgood Marshall: So if you gave it to four universities, two church oriented and two not --two church oriented would not get it.

Mr. Floyd Willis Iii: No, Your Honor, I do not think so.

We conceded that John Hopkins does not fall within the purview of this statute.

The John Hopkins is not in fact an institution a church institution as such but rather is an educational institutional that is incidentally operated by the church and we have done so because the DC law has been very clear that they would hold in that fashion.

There was also specific bequest of the Little Sisters of the Poor in this case, again a non-sectarian institution which is run by catholic order.

Justice Thurgood Marshall: So if you gave it two clergymen teaching at a university and two layman teaching at a university, the clergyman could not accept?

Mr. Floyd Willis Iii: Well there is some law in the District of Columbia that suggest that if you are in fact giving it to the individual because he is an individual rather than a priest that the statute would not have its effect.

Justice Thurgood Marshall: It sounds like what if done, the DC court gets through, then it would not be anything there?

Mr. Floyd Willis Iii: They made serious (Inaudible) and that is one of the reasons we feel that it has if any effect at all, only a very minimal effect on the exercise of religion, the 30 day period for one and the fact that the statute has been gotten around on many other occasions.

Now, I just kind of lost my place.

We also submit that the statute does not violate the Fifth Amendment.

Unknown Speaker: I just wonder if -- let us assume that we disagreed -- why to we reach the religious issue.

Mr. Floyd Willis Iii: We submit that you do not have to reach the religious issue.

Unknown Speaker: What if we disagreed with the lower court on that it violates the Due Process Clause?

Mr. Floyd Willis Iii: If you reach the issue that it violates the due process.

Unknown Speaker: What if we decide -- the lower court said that this violates the Due Process Clause?

Mr. Floyd Willis Iii: And also the First amendment of the lower court, the Superior Court of District of Columbia.

Unknown Speaker: Well, I know the Court of Appeal did not.

Mr. Floyd Willis Iii: The Court of Appeals did not.

Unknown Speaker: Let us assume we agree with you that the court was wrong on the due process then what do we do?

Mr. Floyd Willis Iii: You reverse and remand the case back, I believe.

Unknown Speaker: Without talking about the First Amendment do we?

Mr. Floyd Willis Iii: I would hope that would be the case although I have certainly prepared here --

Unknown Speaker: Or you have already argued the First Amendment?

Mr. Floyd Willis Iii: I understand that and I argued that because I felt that it was likely that Your Honors would want to hear the First amendment argument.

The lower court certainly made that argument and the concurring opinion of Judge Riley certainly made that argument.

Unknown Speaker: We have no idea how the lower court views the First amendment issue.

Mr. Floyd Willis Iii: It does bear in this fashion though, Your Honor on a procedural or a substantive due process or equal protection, the question becomes in is there a fundamental issue involved that requires strict scrutiny as opposed to the rational basis and getting to rational basis, if in fact the statute does create a classification, these classification do not offend constitutional safeguards of the Fifth Amendment, because the classifications are clearly related to the statute's objective.

That is, as I have already said to protect the testator during this very brief period when they might be inclined to leave their property in a unwise fashion and also I believe to preclude the church from exercising its unique abilities to influence gifts to religion.

Chief Justice Warren E. Burger: How does that apply, if one of the members of the professional football team 27, 28 years old makes a will, leaving everything to a church, then the airplane carrying them down to Houston, Texas for a football game crashes 10 days later, does that have any set statute rationale as applied to that situation or that is the is the purpose of the statute rationale?

Mr. Floyd Willis Iii: The purpose of the statute is I think is rational your honor and that is the test.

Under--

Chief Justice Warren E. Burger: That is the reason, I picked the 27 year old professional football players that I suspect he was not anticipating death at the time he made that will.

Mr. Floyd Willis Iii: That is correct, Judge Newman, for instance picked that a 25 year old Ferrari driver.

Chief Justice Warren E. Burger: Then it might be more dangerous.

Does it make any sense, is there are any elements of under influence as applying to an accidental death occurring?

Mr. Floyd Willis Iii: I do not think so, Your Honor.

I think that clearly is one of those unfortunate situations that runs a foul of the statute but I do not think that makes it unconstitutional.

Chief Justice Warren E. Burger: In any event we would not have to decide that in this case because we do not have a 27 year old professional football player.

Mr. Floyd Willis Iii: No, I do not think, I agree with you, Your Honor.

I think that is an issue that has to be decided by this court and was addressed by the lower courts, that the statute may very well apply to the people in the prime of their life who do not contemplate death and it may very well allow people who die 31 days after of a terminal illness to escape the effect of the statute.

Unknown Speaker: The Federal State and Gift Tax laws used to, I think they do not any more contain an irrebuttable presumption that any gift made within one year of death was in contemplation of death and that presumably would be applicable to the Ferrari driver or the football player, would it not?

And nobody else further knows to protect the constitutionality of those provisions.

Mr. Floyd Willis Iii: The irrebuttable presumption was specifically decided to be invalid by this court.

Unknown Speaker: The (Inaudible).

Mr. Floyd Willis Iii: The Hyner(ph).

Later the IRS that went to a rebuttable presumption and that certainly is also something it could be argued here that why not and I think Judge Newman said this why not have a rebuttable presumption so that there could be some kind of procedural due process review so that, Justice Burger's example would the free from the effect of the statute.

Well, I submit to you there is a couple of reasons, one the testator is always dead, so the motives of the testator are never going to be able to be discovered and two it is awfully hard to imagine at a due process hearing, the person who exercised that undue influence coming in and conceding it.

I think it would be a futile act to have a due process hearing on to that situation.

If, in fact this is an irrebuttable presumption and I think in order for it to be a irrebuttable presumption, that is the only time, we are going to have to have a due process theory to determine.

Justice Thurgood Marshall: Where would the influence be if somebody left the money to the Principal of Bishop in Kenya?

Mr. Floyd Willis Iii: I think if that person was in fact a resident of the District of Columbia that statute that bequest would be declared invalid.

Justice Thurgood Marshall: Nobody knows who he is.

Mr. Floyd Willis Iii: I guess there will have to be some feeling that he was in fact a religious person, Your Honor that would, he would be I believe allowed to come in on a due process basis and show that the statute did not apply to him, just as somebody would be allowed to show that no -- the date on this will is in fact 31 days before.

Justice Thurgood Marshall: Do you mean, a Bishop is surely, not a clergymen?

Mr. Floyd Willis Iii: Bishop is not a clergymen, I always thought that all Bishops were clergymen.

Justice Thurgood Marshall: Well, that is a valid point.

Would you say he could come in?

Mr. Floyd Willis Iii: Well, if he could show, if he could make a showing that he was not a clergymen, that his title of Bishop did not in fact mean that, I think he would be entitled to --.

Justice Thurgood Marshall: Take the whole lot of money and get --.

Mr. Floyd Willis Iii: As I have indicated, I believe this to be a rational classification, largely because of the unique ability of religions to prevail this kind of influence.

While it is true and it is something that the lower courts address themselves to, that there are other classes of people who may have an equal opportunity, that is access wise to influence the testator; our submission is as Justice Rehnquist has suggested to that, none of them possess the ability to suggest salvation in return for a substantial request.

Also, suggested there is way, the harsh aspect of this statute could have been voided, particularly in the case of Sallye Lipscomb French, her wills were written by a lawyer, she was 87 years old.

It appears likely that her life span was a short one.

She certainly could have made an inter vivos trust which would exist for 31 days or 35 days, which would dispose off the identical property that she disposed off by her will, and it could have been.

So that there was a way that the harshness of the statute could have been avoided.

If in fact, she was a rational person not affected by undue influence then she could have elected to do so and she is not a welfare recipient who is not going to be put in the position of having to go to lawyer and write a will, as has been the problem in some of the illegitimacy cases that your honors had decided.

I submit that in the irrebuttable presumption area the case decided by Your Honors of Weinberger v. Salfi is controlling.

In that case as you may recall there was a irrebuttable presumption as such that one who marries a person entitled to welfare benefits and not welfare social security benefits, and that marriage fails to survive for a nine month period, that the widow is in fact not entitled to the survivor benefits and your honors have decided that, that statute is in fact a prophylactic one as this one is a preventive one that does not require anything other than the showing that in fact they do not meet the standards that are required under that statute and that is the same I believe the facts here, except we are only dealing with 30 days, we are not dealing with nine months.

Mr. Salfi, in fact died of a heart attack and the suggestion is that it could have been shown if allowed by Mr. Salfi, that he was a healthy man and his marriage was entered in to not for the shame but rather as a genuine marriage.

I submit also now that we have already talked about a little bit that there is no reason to apply the strict scrutiny standard, I submit the statute has a clearly secular purpose, that is to protect the testator and the heirs and to prevent a particular class, a defined class from exercising undo influence within a very limited period.

Its primary effect, I think neither advances nor inhibits religion and I emphasize the words 'primary effect' and there is no excessive entanglement with religion in this case, no more so certainly than in the tax case was.

And in that situation as I indicated the primary effect portion of that standard is one that most closely be reviewed.

The question becomes in my view, in our view, he is the incidentally impact on religion that is the denial of this bequest.

Here assuming that there is an incidental impact, which results from the non-fundamental interest of a scheme of testamentary disposition obviously one which does not have a fundamental right attached to it; there is some question as to whether or not there is right to testamentary disposition without state procedures in any of event, is that incidental impact sufficient to trigger strict scrutiny, and I submit that in the standard that Your Honors have previously made the 'primary effect' clearly eliminates incidental impact and consequently that there is no compelling state interest that must be shown by the heirs at law or ordinarily by the District of Columbia government but they have declined to become involved in this after the superior court case.

Further, I suggest that what the courts below have done is they have substituted their own judgment for what is purely a legislative function.

There is a rational basis for the statute, they do not like the statute and as a consequence, they declare the statute to be violative of the Fifth and Fourteenth Amendment.

The statute may no longer be as valid as it once was, it is an 1866 statute, the same Congress that passed the Fourteenth Amendment and Judge Pomeroy in a dissent in a case from Pennsylvania, In re estate of Cavill (ph), said that in an age when the hope of salvation may be less vivid and the fear of damnation less acute than formerly it was, one may disagree with the wisdom or necessity of the provision before today but wisdom whether that this of court or the legislature is not determinative of legislative power, thank you.

Chief Justice Warren E. Burger: Thank you Mr. Willis.

Mr Bauersfeld.

Argument of Carl F. Bauersfeld

Mr. Carl F. Bauersfeld: Mr. Chief Justice, may it please the court.

I would like first to address myself to the jurisdiction question.

The Appellees renew their motion to dismiss this appeal on the ground that the court has no jurisdiction over the appeal under Title 28 USC Section 1257.

This motion is based upon the fact that allows any statute of the Congress is a statute of the United States, Congress did not intend laws applicable only in the District of Columbia to be statutes of the United States for purposes of this courts appeal jurisdiction under Section 1257 of Title 28.

We rely on the case of the American Security and Trust Company v. the Commissioners and the other case is cited in our motion to dismiss and also in the brief.

In the American Security case the court had under consideration, the provisions or Section 250 of the judicial code enacted in 1911 which provided that any final judgment or decree of the Court of Appeals may be reexamined in cases in which the construction of any law of the United States is drawn in to question by the defendant.

The court in the American Security case held that Section 250 of the judicial code should not be applied to purely local laws applicable only in the District of Columbia.

The opinion pointed out that the same phrase used in the statute may have different meanings in different connections.

In other words it is the context in which Congress uses the phrase that is important and it is we say here that the context in the present situation, it is unreasonable to believe the Congress in cases from the District of Columbia Court of Appeals where a statute is limited or confined to the operation in the District of Columbia are determined to be invalid is not to be -- come to this court by direct appeal.

In Palmore v. United States, the court pointed out that jurisdictional statutes are to be strictly construed in authorizing appeals to this court.

That case interpreted certain provisions of the District of Columbia.

The Court reformed a Criminal Procedure Act of 1917, that act clearly indicated that distinctions between the statutes of the United States and statutes of the District of Columbia are of jurisdictional importance.

If the new District of Columbia courts organized under article 1 or to be able to function as purely local courts and United States District Courts for the -- and the United States District Court for the District of Columbia was to be able to function as an exclusively Article III Court by section 1702 (C) of that Act, Congress added section 1363 to Title 28 of the code and that section provides for purposes of this chapter referring to District Court jurisdiction, references to the laws of the United States are acts of Congress do not include laws applicable exclusively to the District of Columbia.

Congress has recognized not only in the District of Columbia Court Reform Act in 1970, but generally, that enactments for the District of Columbia are separately distinct from those that are applicable to the entire United States.

It is done this by enacting two separate codes.

The District of Columbia code specifically provides that it contains all the general and permanent laws relating to or enforcing the District of Columbia except such laws as are applicable in the District of Columbia by reason of being laws of the United States, latter laws of course are -- appear in the United States code.

Now in the American Security and Trust Company case, the court recognized that the jurisdictional statute, it was interpreting there was passed to reduce the number of deals to this court; the position which was contended for by the appellant in that case would have had the effect of increasing the number of appeals contrary to the intention of Congress.

Unknown Speaker: Then they could come here only by way of certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: Not at all by appeal ever.

Mr. Carl F. Bauersfeld: From the district court from the District of Columbia, yes that would be my position.

Unknown Speaker: And that is an usual posture for any court, isn't it?

Mr. Carl F. Bauersfeld: Well at the present time, the appeals may only come here; cases may only come here to this court from the United States Court of Appeals for the District of Columbia circuit by certiorari.

Unknown Speaker: If it holds a state act and constitutional, doesn't the state have the right of appeal rather than certiorari?

Mr. Carl F. Bauersfeld: I think under 1254, that it may only come here by certiorari; certainly if a state court holds a state statute unconstitutional it has no right to come here.

Unknown Speaker: Yeah and if the federal constitution --.

Mr. Carl F. Bauersfeld: Yes, if it is the state statute.

Unknown Speaker: The general principles of a federal court holds a federal statute United States unconstitutional review is by certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: But if a federal court holds a state statute unconstitutional review is by appeal.

Mr. Carl F. Bauersfeld: I stand corrected Your Honor.

Unknown Speaker: My only point is I think you place this court in a position by itself and it maybe your argument would have to be that is what Congress intended.

Mr. Carl F. Bauersfeld: That is what my argument is your honor, it is not a court with the same magnitude as United States, Court of Appeals.

Unknown Speaker: What is involved in this case and you argued to us that you want to cut down on the number of appeals to this case to utilize and use an undue influence?

Mr. Carl F. Bauersfeld: I did not understand that sir.

Unknown Speaker: Well, if I understand it, and what you are suggesting is that even when the District of Columbia, Court of Appeals as in this case declares a district statute, unconstitutional, a statute, whose operation is confined to the district, unconstitutional under the federal constitution.

That they are only review here, in this court from the District of Columbia Court of Appeals is by certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: And you are urging on us what that we should treat this as a petition for cert and then deny it?

Mr. Carl F. Bauersfeld: Well, I was going to get that, let me add.

Unknown Speaker: That is your first submission on the jurisdiction.

Mr. Carl F. Bauersfeld: I have not finished yet.

Unknown Speaker: Well, I am sorry.

Mr. Carl F. Bauersfeld: But to further answer your question, if the District of Columbia code is considered a state statute, the laws are equivalent to state then the in validation a state, in effect the state law and if it were a state court, the state court could not come to this court by appeal.

Unknown Speaker: For jurisdictional purposes the District of Columbia Court of Appeals is a state code as well.

Mr. Carl F. Bauersfeld: Well, it is made applicable --

Unknown Speaker: We decided that.

Mr. Carl F. Bauersfeld: Yes.

Unknown Speaker: Well, if you deal with it as a state court then if it sustained under your approach, if it sustained a District of Columbia code provision against a federal challenge it would come here by appeal.

Mr. Carl F. Bauersfeld: That would be correct but if it holds a statute unconstitutional, just like if a state court holds a state statute on constitutional then there would be no appeal to this court, that was the point I was trying to say.

Unknown Speaker: Let us see if I follow you, did not the Palmore say that a D.C. Code provision was not a state statute, for purposes of (Inaudible)?

Mr. Carl F. Bauersfeld: It did say that sir but of course, I am getting back to my context argument in that, in that event there.

It did said that in the question.

Unknown Speaker: May I just inquire, are you arguing that a District of Columbia statute is neither a state statute nor a statute of United States or are you arguing that it is a state statute.

Mr. Carl F. Bauersfeld: I am arguing in effect that it is a state statute.

Unknown Speaker: I see, why do not you argue that it is neither?

Mr. Carl F. Bauersfeld: Well, I say.

Unknown Speaker: You are asking as to overall Palmore in effect or say it applies only to the --.

Mr. Carl F. Bauersfeld: No, I say, as used in Palmore, that is correct but in the context here Congress, I am saying never intended to confer upon this court appeal jurisdiction on direct appeals because while the District of Columbia Court of Appeals is the highest court, it is considered same as the highest court of a state, that does not necessarily mean that the statutes enacted are also of the highest court.

Unknown Speaker: I understand that but why can not you reach the same conclusion and what is wrong with the argument that these are a species of legislation which are neither statutes of the state or statutes of the United States was the meaning of that --.

Mr. Carl F. Bauersfeld: Well, of course that is absolutely correct because there cannot be statutes of the state because they are not enacted by the state, they are enacted by the Congress.

Unknown Speaker: And then not a Statute of United States by analogy to those Section in the later chapters, that does not literary apply to this case, this is a different chapter.

Mr. Carl F. Bauersfeld: We say that Congress did not intend in creating the District of Columbia Court of Appeals, intent to allow Appellate Jurisdiction to this Court under the -- every time it holds a Statute that is in District of Columbia Courts unconstitutional.

To do so would really expand its jurisdiction.

In enacting the District of Columbia Court Reform Act in 1970, Congress intended to have the newly created art of the one courts function as local or State Courts.

It intended the United States District Court to function as an Article 3 Court and by adding Section 13(63) to the US Code, it tempted to restrict the District Court's Jurisdiction to acts having general application.

It would seem to power that this Court's Appellate Jurisdiction should be limited to cases involving Statutes of the United States having general application rather than acts of Congress that are confined to the District of Columbia.

It is in this context that we urge the Court to deny jurisdiction.

In Palmore versus The United States, this Court treated the jurisdictional statement as a petition for certiorari.

It is submitted that the Court should not follow that procedure in this case because this case presents neither a substantial federal question nor an issue that needs further elucidation by way of precedent.

The D.C Statute here involved the so called Mortmain Statute is unique in the United States and that it voids only religious testamentary gifts.

The Pennsylvania Statutes in the other so called Mortmain Statutes are not merely so discriminatory.

And that they also prohibit gifts to other charitable organizations.

Here, the District of Columbia stands to gain tax revenue by continued validity of the Statute because the District of Columbia Court provides that the bequest would escheat to the District of Columbia if the testator had no living heirs.

Yet the District of Columbia did not appeal from the decision of the Superior Court.

The United State has never entered an appearance in the case, although each was given notice under rule 47, the rules of the District of Columbia Court of Appeals which is in analogous to 28 USC Section 24(03) where you have to notify the Attorney General in cases where there is a constitutional question in order to the Statute being drawn in question.

So apparently neither the District of Columbia nor the United States consider that the issues in this case are substantial else they would be here today.

Further there is a bill now pending before the City Council of the District of Columbia to repeal this particular Statute, it is bill 2-171 introduced in June 1, 1977.

Justice Thurgood Marshall: Will it affect this case, will it?

Unknown Speaker: Only on whether or not you consider the federal question, a substantial question.

Justice Thurgood Marshall: I do not see it can affect this case at all?

Unknown Speaker: Their non-appearance might reflect the conviction that the Court of Appeals was right?

Mr. Carl F. Bauersfeld: It may well sir.

Passing to the merits of the case we urge the Court to affirm the decision of the Court of Appeals.

Court below held the Statute invalid as establishing classifications that have no rational relationship to the purpose of the legislation and thus deny equal protection of the laws.

Unknown Speaker: Whose right are you depending here the church's or the testators involved?

Mr. Carl F. Bauersfeld: I would say both Your Honor.

The Court of Appeals place their decision of the rights of the legatees, Churches.

Unknown Speaker: And your client is one of the legatees?

Mr. Carl F. Bauersfeld: Yes your honor, well I represent the Calvary Baptist Church.

Unknown Speaker: So you are saying the legatees are being unconstitutionally discriminated as against other legatees?

Mr. Carl F. Bauersfeld: Yes, sir.

Unknown Speaker: And on the First Amendment question whose rights that the District Court feel had be entrenched, the testators or the churches?

Mr. Carl F. Bauersfeld: I think both, my best recollection your honor what has been ----

Unknown Speaker: Are you going to argue that question or it is ---

Mr. Carl F. Bauersfeld: Yes I thought if I had time---

Unknown Speaker: I just asked you, whose rights are you going to ---

Mr. Carl F. Bauersfeld: I think that as far as First Amendments rights are concerned it violated both.

Unknown Speaker: Was the testator a member of the congregation or whatever is told of your church?

Mr. Carl F. Bauersfeld: Yes he was a member of the congregation.

Unknown Speaker: Certainly in many cases that holds a membership organization or association concert to rights of its individual members LACP -- affirming any one of the case.

Mr. Carl F. Bauersfeld: Before getting in to the merits perhaps I should restate the facts or bring out some additional facts.

The bequest that was made by Mrs. French left a number of bequest and in addition it left her residuary to three persons, one third John Hopkins University which is not involved here that bequest, (Inaudible) should be paid and then one bequest to the Calvary Baptist Church, of one third of residuary and one third to St. Matthew's Cathedral.

Mrs. French was a member of a the Calvary Baptist Church, her husband a physician, who predeceased her was a member of the Catholic fate.

It was stipulated in the case and the Court of Appeals held there is no evidence that the Appellees had made any attempt to influence her choice of legatees.

In addition, this bequest in this case involves only personal property.

It does not involve any real property.

The heirs at law here are collaterals are brother and nieces and nephews.

I am getting back to my argument on merits.

The Court of Appeals relies on the legislative history and stated that the purpose of the Statute was to preclude bequest, gifts to clergymen and to religious organizations by persons who might be unduly influenced by religious considerations.

It pointed out that the Statute voids only bequest and devises for the benefit of religious institutions or the clergy.

Testamentary bequest to charitable organizations are not included in the DC Statute.

Further the Statute is interpreted by the District of Columbia Courts and I believe this Court will power the interpretations of the District of Columbia Court distinguishes between bequest to religious institutions and bequest to charitable institutions owned and operated by religious institutions.

The Statute only validates bequest to religious organizations and for the religious purposes and to the clergy.

The Court concluded that there was no rational basis for presuming that a testator troubled by religious convictions is likely to make a bequest directly to a church rather than to a charity run by the church, the Statute thus treats similarly situated legatees entirely different.

They further pointed out that there were others, such as lawyers, doctors, nurses and charities who are in an equal position with to influence a testator, yet the Statute never covers them and the same lean out of religion where there is no grounds or difference is irrational.

As I stated before this Statute operates if the testator has no family or heirs and this if it does had no family heirs, the bequest is automatically void and escheats to the District of Columbia.

It was stated that the Courts of the District of Columbia had used the doctrine of dependent relative revocation in other cases to avoid the Statute and this is true, and it was pointed out that it was not used in this case.

The reason was not used in this case, and we never got to it.

The Court granted summary judgment on the other but in the record it shows that the gifts that Mrs. French made to -- by a former wills to the charitable organizations.

Unknown Speaker: Were identical?

Mr. Carl F. Bauersfeld: No they were not identical but they did include---

Unknown Speaker: Same legatees.

Mr. Carl F. Bauersfeld: These legatees and regarding the tax law irrebuttable presumption, even though if they had presumption for tax purposes they never avoided the gift, the gift remained.

Unknown Speaker: We just presumed to be for the purpose of taxes.

What was the name of the case in this Court involved in it back in the 30s, do you remember?

Mr. Carl F. Bauersfeld: I am sorry, just forgot sir.

Unknown Speaker: You can not remember anything.

Mr. Carl F. Bauersfeld: It was suggested also by council that the testator could have avoided this problem by making inter vivos gifts.

Well that argument I think conflicts with the decision of this Court in rational of decision in Trimble v. Gordon where that is not the issue, if she had done that then we would not have the issue here.

In his argument and his brief, it is the Appellant State that is questionable whether the Statute makes the classification at all and thus whether the equal concept of laws applies.

It is argued that it is a part of the law of District relating to testamentary dispositions, the appellees recognized that a state can legislate to regulate both testate and intestate succession.

However when the State does so legislate, it can not do so in a discriminatory matter and it is here, its laws must be consistent with the requirements of equal protection and the Statute here singles out gifts to religious institutions for religious purposes and to the clergy in a discriminatory matter.

The Appellant state that the Statute does not regulate a fundamental interest protected by the First Amendment and therefore that there is no need to show a compelling interest to justify the Statute.

It seems to me that it needs little or no argument to show that the free exercise of one's religion is a fundamental constitutional right protected by the First Amendment.

Now, the Court of Appeals did not reach the issue of whether the classification affects fundamental rights, since it concluded that the discriminatory treatment set forth in the Statute could not withstand the rational basis test.

However, the trial court concluded that there was no compelling State interest to justify the classification made by the Statute.

The Statute singles out religious organizations for religious purposes alone and precludes the right of the beneficiaries to receive the bequest.

Unknown Speaker: Now is this an argument that it violates the First Amendment?

Mr. Carl F. Bauersfeld: No this is still under the --

Unknown Speaker: Equal protection.

Mr. Carl F. Bauersfeld: The Equal Protection clause.

Unknown Speaker: Would you be making the same argument if all the Statute did was to bar gifts to lawyers made within 30 days of death?

Mr. Carl F. Bauersfeld: I believe, so yes, if it singled out just lawyers, yes.

Unknown Speaker: Or any other identifiable --

Mr. Carl F. Bauersfeld: Any other single person, yes.

Unknown Speaker: What if it singled out people who have apt to have access to a testator in the period immediately before it might expect to die, doctors, lawyers, priest ministers, rabbi?

Mr. Carl F. Bauersfeld: If it was broad and just not just singling out religion and --

Unknown Speaker: And family members.

Justice Thurgood Marshall: That is right.

Unknown Speaker: Well what about the set of cases that says, stick to my lawyer example, there is a minor cases that says a State need not solve all the problems at once, it can take a step at a time and they just stepped in to the layer, I just took the lawyer's step in my example, do you would --- you think that would still be invalid?

For the same reason, if you are arguing on ---but at least you do not think there is any difference between priest and lawyers in that regard --

Mr. Carl F. Bauersfeld: No sir, I do not.

Unknown Speaker: What about the argument of the possible promise of salvation provides justification for legislating of respective religious persons?

Mr. Carl F. Bauersfeld: You are directly involving the First Amendment in that instance and I think it is suspected --

Unknown Speaker: But then, that is simply because the First Amendment argument or was that also equal protection?

Mr. Carl F. Bauersfeld: Well I think they would overlap sir, but it is a First Amendment argument primarily.

Unknown Speaker: Even if it -- we assumed to factually accurate, that there is a greater risk of an unwise testamentary disposition to some in exchange for promise of salvation, you still say it violates both---

Mr. Carl F. Bauersfeld: Yes, I think it violates both because it discriminates.

Unknown Speaker: Well, what part of the First Amendment do you think that violates?

Mr. Carl F. Bauersfeld: We think it violates both, however the Court---

Unknown Speaker: How does that lead to an establishment of a religion?

Mr. Carl F. Bauersfeld: If I can get over, do you want me to get out of the Fourth the ---

Unknown Speaker: Yeah, I would like since we are on the subject, you say it violates both section of the First Amendment, how does this particular Statute lead to the establishment of a religion?

Justice Thurgood Marshall: May be if it is enough money?

Mr. Carl F. Bauersfeld: Well the Establishment Clause says that the (Inaudible) law which establishes or forbids a religion.

Unknown Speaker: And you are saying it violates forbid clause not the establishment?

The establishments, with all respect to you, brother, why it does not say forbid?

Says affected.

It says Congress shall make law respecting an establishment or prohibiting the free exercise there --.

Now may be we are in the Free Exercise Clause?

Mr. Carl F. Bauersfeld: I think we are in both and ---

Chief Justice Warren E. Burger: Anyway if you do not need both, if you can persuade us on one, do you?

Mr. Carl F. Bauersfeld: That is correct, and the Court below in the Trial Court held that it violated the Free Exercise provision of the First Amendment.

Chief Justice Warren E. Burger: The right of any testator to give, makes bequest to some, give legacies to anyone, to any church or all churches?

Mr. Carl F. Bauersfeld: Yes.

Unknown Speaker: And what authority is there for the propositions that the Chief Justice has justice suggested to you, that the free exercise clause confers the right to unfetteredly bequeath money to any church regardless of any State regulations?

Unknown Speaker: Let me suggest an answer that the free exercise preserves the right of a clergyman to persuade his member of his congregation to give it to the church.

Mr. Carl F. Bauersfeld: That was of course, the direct opinion of the concurring judge in the Court of Appeals, he placed it on that very right.

Unknown Speaker: You do not go along with that.

Mr. Carl F. Bauersfeld: Well I think it is easier to justify it on other grounds but I agree with it but I think it is just easier to justify on other ground.

Unknown Speaker: What grounds, equal protection?

Mr. Carl F. Bauersfeld: Yes the Court of Appeals reached it on the equal protection.

Unknown Speaker: I know that but what -- may be that is a slippery slope?

What do you think we should decide it on, if we go your way?

Mr. Carl F. Bauersfeld: Well, I would prefer you to decide it on the Equal Protection Clause, sir.

Chief Justice Warren E. Burger: I think, your time is expired now, I think your friend has one minute left.

Do you have anything further?

Rebuttal of Floyd Willis Iii

Mr. Floyd Willis Iii: Oh yes your honor I want to just brief on --

Chief Justice Warren E. Burger: Whether he is going to give us anything?

Mr. Floyd Willis Iii: Just on the issue of jurisdiction, I submit that what my brother says is not accurate because the Statute would not include the last paragraph that is 1257 would not include the last paragraph, if Congress did not mean for the State, this Court to have Appellate Jurisdiction over the District of Columbia Court of Appeals.

Comment was made that DC has not appeared, the District, the government has not appeared, I submit to you because of the diminimus effect of the Statute has on the District of Columbia and not because they feel it is unconstitutional.

The very distinction between this Statute and all other Statutes of alike nature is what makes this Statute more rational.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Costarelli v. Massachusetts - Oral Argument

Thu, 23 Aug 2012 18:27:10 +0000

Case:

Costarelli v. Massachusetts

Media File:

73-6739_19750317-argument.mp3

Related Transcript:

73-6739_19750317-argument

Transcript:

Argument of Robert W. Hagopian

Chief Justice Warren E. Burger: We'll hear arguments next in 73-6739, Costarelli against Massachusetts.

Mr. Hagopian, I think you may proceed now.

Mr. Robert W. Hagopian: Mr. Chief Justice and may it please the Court.

This case involves an appeal from a Municipal Court in Boston.

In Massachusetts, we have what's commonly known as a two-tier trial de novo system.

There is a set of lower courts that is comprised with the district courts and the Municipal Court of Boston and there is a second tier in the de novo procedure which is basically the superior courts.

The Superior Court and the district courts, or the lower courts have concurrent jurisdiction over the most crimes.

One limitation is that the first tier or the lower courts can only have jurisdictions over crimes which are punishable up to five years in the state prison.

There are a few exceptions that go up to 10 years, burglary and breaking in and entering at nighttime.

The district courts have jurisdiction.

In the district courts in Massachusetts as so construed by the Massachusetts Supreme Judicial Court, you cannot obtain a trial by jury in the first instance.

You have the option there of pleading not guilty and going to trial or you have the option of pleading guilty.

If you're convicted after you plead not guilty, you have supposedly an unqualified and unfettered right for a trial de novo in the second tier of the Massachusetts procedure.

If you plead guilty, you cannot get a trial de novo in the second tier.

You may appeal the sentence itself, that is if you're imprisoned, the length of confinement but there is no trial in the second tier on the merits of the controversy.

There is no procedure in the Massachusetts two-tier procedure for any appellate review of a decision in the lower court or lower tier.

There are a number of collateral remedies that are available that is if you go to trial in the District Court and you're convicted and imprisoned, you may bring a writ of habeas corpus.

There is another writ called the writ of error which is unlike the writ of error that used to come to this Court many years ago and it's what's normally known.

That writ of error is not available for any collateral relief.

It's an independent and distinct proceeding.

The third possibility is to petition to the Supreme Judicial Court for extraordinary relief under their supervisory powers.

Now, in this particular case, the appellant, Steven Costarelli requested a jury trial in the first instance.

He was charged with a crime of which he could've received two years in prison and a fine.

A trial judge denied that motion, notwithstanding the fact that Mr. Costarelli had asserted his specific constitutional rights and the right to a speedy trial which he interprets that meaning as speedy trial by jury or speedy trial that comports with constitutional standards and also his rights under the double jeopardy provisions.

From the denial of that motion, he brought -- filed an appeal in this case and this case, the Court has set down the issue of jurisdiction.

I submit to you, Your Honors that this Court has jurisdiction over an appeal from the Boston Municipal Court because that court is the highest state court within the meaning of those words in Section 1257.

That is, there is no further appellate review.

Massachusetts' argument to this case or to this point in jurisdiction is very simply that the appellant has the right to trial de novo and of course, that's what the basic issue about what this case is all about.

In terms of jurisdiction, trial de novo is not an appeal on the record of the lower court proceedings.

It grants a person a new trial.

There is no means of reversing errors that went on down in the lower court.

Justice William J. Brennan: Mr. Hagopian, what if your client had been initially tried in the District Court on the same charge he wasn't acquitted and then he was tried again in the District Court and found guilty and you wanted to raise the claim of double jeopardy.

Could you raise that in the Superior Court on an appeal from that second verdict?

Mr. Robert W. Hagopian: Yes.

Certainly the issue --

Justice William J. Brennan: Well, then why can't you raise your jury trial claim here?

Mr. Robert W. Hagopian: Well, that of course is a very complicated question.

But the answer to that is that I think that it is this, that after he has gone up to the Superior Court and he raises -- he can raise the issue of double jeopardy in the form of a motion on that bar.

I don't believe he can collaterally attack what went down in the District Court of the denial of a jury trial is a pure reversible error.

It may be mooted by the fact that if the judge denies this motion to bar in the Superior Court and he's granted a jury trial and he's convicted there, then he's had a jury trial and the issue may be moot.

That is if you consider the fact that a denial of a jury trial is purely a reversible error for getting the double jeopardy claim with the speedy trial claim if it is purely a reversible error, it's been cured by the fact that he has a jury trial.

Justice William J. Brennan: But then you could have I suppose under those circumstances after making your point in the Superior Court claiming the right to jury trial, they rule against you, at least brought it here from the Superior Court on the ruling on that motion rather than just from the District Court.

Mr. Robert W. Hagopian: Yes, that's quite correct.

I have that issue now before the Massachusetts Supreme Judicial Court and that case is currently being litigated there but I don't think that that cuts away from this Court's jurisdiction.

A man who's tried down in the District Court, the Municipal Court of Boston, he does not have to suffer a second trial before he can get appellate review in this Court.

That is the foundation of which this Court's jurisdiction is predicated under Section 1257.

Justice William J. Brennan: But if your answer to my question is right, he wouldn't have had to suffer a second trial.

He could've gotten a ruling on his motion in the Superior Court and before he ever went to trial in the Superior Court could've brought it here.

Mr. Robert W. Hagopian: No, that's not correct.

I don't believe that's correct because then it would not be a judgment from which an appeal could be taken.

It was simply a denial of a motion.

He would have had to gone through the trial in the Superior Court.

He can't appeal from the denial of a motion in Superior Court.

He can only appeal under Section 1257 from a denial of a judgment.

That is from the final judgment of Superior Court.

That would be piecemeal adjudication of the trial or the proceedings in the Superior Court and I don't believe the jurisdiction would lie under that procedure.

Justice William J. Brennan: Well, what you're saying then is that, although he can appeal from the final judgment of District Court, had he taken the state proceedings a step further, gone into the Superior Court and made his motion, he couldn't appeal from there.

Mr. Robert W. Hagopian: That -- unless he's completed the trial in the Superior Court, then he would have to go to the Massachusetts Supreme Judicial Court because the Superior Court is not the highest state court within the meaning of those words.

He would have to go all the way up through the ladder through the Appeals Court in Massachusetts and the Massachusetts Supreme Judicial Court and let me just state for the record and perhaps that's not too clear, it should be clear on the record, Mr. Costarelli has lodged an appeal for trial de novo in the Superior Court.

That was done under compulsion and I don't believe that he should've been forced to elect his remedies at that stage of the proceedings.

Justice William J. Brennan: Is that pending now?

Mr. Robert W. Hagopian: Yes, it is and the Chief Justice of Superior Court has stated those proceedings pending the disposition of this case.

Justice William J. Brennan: Does that go up on the record and made in the District Court?

Mr. Robert W. Hagopian: Well, the only record that technically goes up, a complaint is filed in the District Court, if he's found guilty, that record and the disposition that goes on the District Court goes up to the Superior Court.

Other than that, there is no record in the District Court and you cannot collaterally attack anything that went on in the District Court.

It's a trial de novo, that's what's meant by trial de novo in the definition, that is --

Justice William J. Brennan: What goes up to the Supreme Judicial Court on your motion for extraordinary relief?

Mr. Robert W. Hagopian: If you bring a motion for extraordinary belief -- relief in the Supreme Judicial Court from proceedings in the District Court, nothing goes up.

The record does not go up.

You must file a complaint just like you would initiate in civil proceedings.

Justice William J. Brennan: The complaint is just like a complaint in a trial court?

Mr. Robert W. Hagopian: No.

That is if you are an aggrieved defendant in a District Court proceeding and you want it to go to the Supreme Judicial Court under their supervisory powers, you would have to swear out a complaint just like you would in a federal district court.

Justice William J. Brennan: Just like a writ of prohibition or mandamus.

You allege what you claim going down the road.

Mr. Robert W. Hagopian: That's right.

The record does not go up and of course, that's a crucial issue to the --

Justice Thurgood Marshall: Suppose when you get to the court of general jurisdiction on the appeal of trial de novo but I don't use it with any meaning at all, and you say this Court doesn't have jurisdiction to try me, that the Court passes on its own jurisdiction?

Mr. Robert W. Hagopian: I'm sorry, your Honor, I didn't understand that question.

Justice Thurgood Marshall: The Court doesn't have jurisdiction to try me?

Mr. Robert W. Hagopian: The Superior Court?

Justice Thurgood Marshall: Yes.

Mr. Robert W. Hagopian: The Superior Court in Massachusetts --

Justice Thurgood Marshall: Suppose the motion is made that the Superior Court does not have the right to try me because the Court is without jurisdiction.

Mr. Robert W. Hagopian: Well, I don't think that the fact that he did not have a jury trial in the District Court affects the jurisdiction of the Superior Court.

Justice Thurgood Marshall: I didn't say one word about jury trial.

I said the motion is made that the court's without jurisdiction.

Mr. Robert W. Hagopian: Well, I suppose you could make it Your Honor but I don't know why it should be denied because it's the only thing that --

Justice Thurgood Marshall: Suppose it is denied, could you appeal it?

Mr. Robert W. Hagopian: Not without going through a trial, Your Honor, no.

Not in the Massachusetts --

Justice Thurgood Marshall: You mean, in Massachusetts, you make a point that this Court is without jurisdiction because the judge is six-years-old, and thereby on the jury is dead that that can't be appealed?

Mr. Robert W. Hagopian: I don't believe there are any procedures in the Massachusetts system that allow piecemeal adjudication of the issue of jurisdiction.

Justice Thurgood Marshall: Jurisdiction is not piecemeal.

Mr. Robert W. Hagopian: I understand that from a federal viewpoint, Your Honor to a certain extent but I don't believe Massachusetts, if there is remedy for getting into an Appellate Court other than going through a trial in the Superior Court.

Justice Thurgood Marshall: At this time, I'll take your word for it --

Mr. Robert W. Hagopian: I believe that's correct, Your Honor.

Justice Potter Stewart: Of course you would be in the Superior Court only because you as the defendant had invoked its jurisdiction.

Mr. Robert W. Hagopian: Well--

Justice Potter Stewart: It would be kind of an odd thing to go in there and invoke its jurisdiction and file a motion to say it doesn't have jurisdiction.

Justice Thurgood Marshall: Did you invoke its jurisdiction there?

Mr. Robert W. Hagopian: Well, Yes, Your Honor.

I --

Justice Thurgood Marshall: I thought you said they made you file --

Mr. Robert W. Hagopian: Pardon, Your Honor?

Justice Thurgood Marshall: I thought you said they made you file this motion in the Superior Court.

Mr. Robert W. Hagopian: No, Your Honor, I don't believe I said that.

When Costarelli was convicted in the District Court, we appealed.

I appealed for him and he has a pending trial de novo in the Superior Court.

The proceedings in the Superior Court have been stayed by order of the Chief Justice of the Superior Court pending the resolution of this case in this Court and I don't believe that that because Mr. Costarelli has elected to go forward with that, he still has the right to come to this Court alleging that that is the highest state court, the District Court in Massachusetts.

The fact that he elected a trial de novo cannot constitute a waiver of his federal rights under Section 1257.

Justice Potter Stewart: Let me ask you a question, is there any way in the Massachusetts system whereby Mr. Costarelli could have bypassed the District Court?

Mr. Robert W. Hagopian: No there is not Your Honor.

He may not even waive a trial like in Colten versus Kentucky.

There is some language in this Court and I believe it's a procedure in Colten where you could circumnavigate a trial.

You must stand trial and I believe my brother concedes this.

There's no means of waiving a trial in the District Court of Massachusetts.

You must stand trial and if you remain silent, the Court convicts you, you stand guilty and the burden is upon you in the Superior Court.

If you default, if you do not show up in the Superior Court, judgment will be entered in the Superior Court under the Massachusetts statute the sentence that was imposed in the District Court will be imposed upon you, notwithstanding the fact that you have never waived your right to a trial by jury.

Justice Byron R. White: But if you just go across that file and take your appeal, the proceeding is annulled.

Mr. Robert W. Hagopian: Well, that's not true, Mr. Justice White.

Justice Byron R. White: Well, now --

Mr. Robert W. Hagopian: There are collateral consequences that are very serious.

Justice Byron R. White: De novo -- it's a de novo matter.

Mr. Robert W. Hagopian: It's a de novo matter but there are collateral consequences that are attached.

Very serious ones.

In Costarelli's case, the statute provides that whoever uses a power without authority, if he's convicted in the District Court, his license will be revoked, notwithstanding the fact that he's appealed.

Justice Byron R. White: When you go to the Superior Court, what happens to the judgment --

Mr. Robert W. Hagopian: Well, technically in terms of fiction, it's vacated.

Justice Byron R. White: Well then it's no longer important.

Mr. Robert W. Hagopian: That's not strictly true because of the fact that you --

Justice Byron R. White: You told me it was vacated.

Mr. Robert W. Hagopian: Well, it is but if you default in the Superior Court, it is then imposed.

Justice Byron R. White: This is within your power to annul that judgment by going, by invoking the Superior Court proceedings.

Mr. Robert W. Hagopian: That's correct but there's a great deal of difference when --

Justice Byron R. White: You may not have to plead guilty to get the default to get there.

You just have them to get --

Mr. Robert W. Hagopian: You mean in the District Courts in Massachusetts?

Justice Byron R. White: Yes.

Mr. Robert W. Hagopian: Well, you must have --

Justice Byron R. White: You default.

Mr. Robert W. Hagopian: You can't default.

Judgment will not be entered by default in criminal proceedings in the Massachusetts Court.

Justice Byron R. White: Well, awhile ago you told me (Inaudible)?

Mr. Robert W. Hagopian: No, I am sorry Your Honor.

I think I didn't say that.

What I meant was that in the Superior Court upon trial de novo, if you default there, the judgment of the District Court where you have been found guilty will now be imposed upon you.

Justice Byron R. White: I understand you viewed it on the District Court, what if he just doesn't show up.

They are not going to Court until today?

Mr. Robert W. Hagopian: You can't default.

Justice Byron R. White: They say, well, you can't default.

They'll bring you to court if you just sit there --

Mr. Robert W. Hagopian: That's correct.

Justice Byron R. White: --- so you do have to expose yourself to the state's evidence?

Mr. Robert W. Hagopian: That's correct.

Justice Byron R. White: And then it may not be much of a trial but --

Mr. Robert W. Hagopian: Well, there are serious consequences because if you remain silent, and the Government puts their witnesses on and then --

Justice Byron R. White: You're going to be found guilty?

Mr. Robert W. Hagopian: Well, it's more than that.

If those witnesses die in between the District Court and Superior Court, their unimpeached testimony will be introduced against you in the Superior Court so there's a certain amount of risk to take in that procedure.

Justice Potter Stewart: Well, it's true of a preliminary hearing too though isn't it?

Mr. Robert W. Hagopian: Yes, as a matter of fact, that's true.

It is a true preliminary hearing but there's a great deal of difference between a preliminary hearing and a trial and that point was brought up in Callan versus Wilson.

And Justice Harlan, the first Justice Harlan of this Court said, there's a great deal of difference between a preliminary hearing and a trial in the de novo system and that the trial in our Massachusetts system like it was under the DC procedure here is a full trial in the full sense that there is.

In a preliminary hearing, if you default in a Superior Court, there isn't going to be any judgment that's entered against you and that's the difference.

Justice Potter Stewart: There's another side of the coin and that is if you stand mute and hear the state's evidence, you know what the state's case is.

Mr. Robert W. Hagopian: And the difficulty with that is that the Massachusetts system attaches collateral consequences to that judgment.

It's not totally vacated.

Your driver's license may be yanked.

If you're on probation, you will automatically be sent to jail and those collateral consequences are very severe and this Court has affirmed those collateral consequences in the case last term.

Justice Potter Stewart: I thought you just admitted to Mr. Justice White that you could nullify that entire effect?

Mr. Robert W. Hagopian: You can't nullify the collateral consequences you see because of the fact in the Massachusetts procedure, the statutes that empower the registrar say to yank your motor vehicle license.

They're entirely separate.

That's not part of the judgment of the District Court.

They independently give powers to attach to these collateral consequences.

They are no vacated by the District Court judgment and they are imposed and I raised that issue in a three-judge court last year in the federal district court and they refused to declare that that procedure was being -- putting a price on what's supposed to be his unfettered right of appeal.

And this Court affirmed that decision so I would assume that that procedure is done.

Justice Byron R. White: When does the judgment of District Court become annulled?

Suppose you have this?

Mr. Robert W. Hagopian: That's the end.

There is no further --

Justice Byron R. White: Then what happens?

Mr. Robert W. Hagopian: The Government has no more trials.

That's the end of all the matters.

Justice Byron R. White: How does nothing happen -- nobody divulges anything?

Mr. Robert W. Hagopian: That's correct.

Chief Justice Warren E. Burger: Wait a minute, is this being found innocent in the District Court?

Mr. Robert W. Hagopian: Yes, the District Court.

Chief Justice Warren E. Burger: I think Mr. Justice White asked you suppose you're found innocent in the Superior Court.

Mr. Robert W. Hagopian: Well, then yes, then you are declared innocent and then the registrar has to give you your license back but you see, it's that intervening time between the District Court and the Superior Court that is the nub of the matter.

Justice Byron R. White: Do you say the judgment basis in fact --

Mr. Robert W. Hagopian: Well, let me say this.

The collateral consequences are not part of the judgment.

There are separate statutes that are involved.

The judgment is technically vacated but if you default in the Superior Court, the Superior Court judge has the power to pass sentence on you when you're not even there in default.

He passes the sentence of the District Court.

Justice William H. Rehnquist: It's very much like an appeal in that sense.

Mr. Robert W. Hagopian: It is, it exactly is.

It is an appeal and it's an appeal like Colten v. Kentucky is an appeal.

And that of course goes to the nub of the matter and let me just say this on the issue of Colten.

In Colten, the record isn't transmitted up the Superior Court.

It's a real true de novo system here.

In the Massachusetts system, the judge and jury, everybody knows where these cases came from.

They know that the man has been convicted.

In addition to that of course, the critical issue in Colten was that Colten was entitled to a trial by jury in the first instance.

Let me just say briefly on the merits of this case, I think that the large issue, the broad issue in this case is not whether the rule of Callan versus Wilson is incorporated and the state should be bound.

I think that the real broad issue in this case is whether the states have a right to deny a person a specific procedural constitutional right, whether it's the right to counsel or whether it's the right to an impartial judge or it's the right to a trial by jury.

I don't believe it's any answer for the state to say, we will give you a trial de novo.

I think a man is entitled to those rights in the first instance, right to counsel, right to trial by jury, right to an impartial judge and it's no answer on the part of Massachusetts or the other states to simply say we will give these to you after we've subjected you and you're forced with a stigma of a conviction of guilty.

Now, I don't -- I think trial de novo's have a legitimate place and purposes of administration of criminal justice in the state system and I'm not asking this Court to abolish trial de novo.

All I'm asking them to do was to say that Massachusetts must do what Rhode Island has to do, that when a defendant comes before the District Court, if he doesn't want to proceed at that stage of the proceedings, he should have a right to circumnavigate that trial and go right to the Superior Court or the state has to give him a trial by jury in the first instance.

That's the only thing that I'm asking for.

I'm not asking to take the whole to trial de novo system down.

That request would have some serious consequences.

If the state wants to give somebody a trial de novo as an equivalent to an appellate remedy, I think that's fine.

I see nothing wrong with that as the procedure in Colten but I do object to the fact that the state of Massachusetts can deny somebody his specific Sixth Amendment constitutional rights and I think that that's what the heart of this case is all about.

I'd like to reserve the rest of my time, Your Honor.

Chief Justice Warren E. Burger: You don't suggest I take it that -- this is a subjective question.

If he's tried in this first tribunal with a jury, found guilty, “takes an appeal” but gets a trial de novo, any problems about that in terms of double jeopardy?

Mr. Robert W. Hagopian: No, Your Honor.

That's the procedure in Rhode Island now and well, it's a procedure in Kentucky in the Colten case.

You have a right to a trial by jury.

I have no objections to this.

The double jeopardy issue is that I don't think that a person should have to suffer two trials to get what he's entitled to at least once and this Court just recently and I guess it was Wilson versus United States a few weeks ago held that the real underlying prohibitions of the double jeopardy clause is that the multiple trials.

The trial process itself is impaired but that may result as a manifest necessity.

Obviously, all trials can't be perfect.

Chief Justice Warren E. Burger: But if the state did give the jury trial in the first instance, all they'd need to do is have a review on the record if they provided any review at all, is that possible?

Mr. Robert W. Hagopian: That's correct.

I'm not arguing that they have to provide review at all.

Chief Justice Warren E. Burger: Mr. Mills.

Argument of David A. Mills

Mr. David A. Mills: Mr. Chief Justice and may it please the Court.

I believe that Mr. Justice Rehnquist has asked a single critical question with respect to the issue of jurisdiction.

However by way of introductory overview, I would like to suggest to this Court that Massachusetts has presented a brief with five parts and hopefully we will argue today in five parts.

Those parts are first in accordance with Rule 16, the question of jurisdiction and by way of introduction, we suggest that this Court does not have jurisdiction because this appeal fails of the prerequisite statutory jurisdictional prerequisites in Section 1257.

Our second point will be that the Massachusetts jury procedure as it currently exists is a system which is basic and fundamental and is justifiable as adequate under the Fourteenth Amendment standards that have been enunciated by this Court.

Our third position as presented in the brief will be that the Massachusetts jury system as it presently is in practice is a procedure and system which provides for the function and purpose of jury trial in America as has been enunciated in standards and decisions by this Court.

Our fourth position will be that the right to a speedy trial is not properly an issue before this Court and our final position will be that double jeopardy and the claim of a violation of double jeopardy in this case is controlled by this Court's decision on Colten versus Kentucky.

First with respect to the issue of jurisdiction, Massachusetts suggests that the prerequisites of Section 1257 have not been satisfied.

We suggest that for purposes of an appeal to this Court, pursuant to 1257, there are three prerequisites.

The judgment of the state court must be final.

The judgment of the state court must be of the highest court in which a decision could be had and for purposes of appeal under subsection 2 of Section 1257, the constitutionality of a state statute must have been drawn in question with a determination in favor of its validity and Massachusetts suggests that each of these statutory prerequisites are missing in this case.

With respect to finality, this Court has stated that no self-enforcing formula can be defined as to determine when a state judgment can be final.

And as early as 1869, in the case of Thomson versus Dean, this Court implicitly rejected a mechanical application of a formula of finality speaking rather in terms of the degree of finality essential to appeal.

On page 5 of our brief, we have extracted from the decisions of this Court, principles that we suggest should go into a determination of the degree of finality and our primary principles upon which we suggest this issue should be determined are suggestions from the cases of Richfield Oil Corporation, Market Street Railway Company and Banks versus California which are all cited at page 5 and the criteria that we suggest are controlling are these, that the judgment -- the state judgment in order to be final must be an effective determination of the litigation and subject to no further review or correction in any other state tribunal, that is the first criteria and the second; that available appellate review within the State Court system be pursued if available.

The Massachusetts Supreme Judicial Court has spoken to the nature of the de novo review, most recently in Mann versus Commonwealth which is also cited in our brief.

That trial court has said that upon the de novo review, the District Court proceeding is wiped out entirely and transferred to the Superior Court are all questions with respect to the case, guilt, sentencing power and all related matters.

Justice Thurgood Marshall: I didn't get the beginning.

That's when you filed it or after it's completed?

Mr. David A. Mills: When the appeal is claimed Your Honor.

Justice Thurgood Marshall: When it's claimed?

Mr. David A. Mills: Yes.

Justice Potter Stewart: Is that a peculiar area of Massachusetts so to speak of claiming an appeal?

Does that mean the same time as you file a notice of appeal?

Mr. David A. Mills: As far as I know, Your Honor.

When the appeal is claimed, it transfers the whole case for redetermination completely divorced from the earlier proceedings.

Justice Potter Stewart: What are the collateral consequences your friend was discussing?

Mr. David A. Mills: Well, the collateral consequences Your Honor I suggest, this point has also been raised in the amicus brief of the Massachusetts Defenders Committee.

They suggest as does the appellant that this Court should enter an order or take some action suggesting that the Massachusetts defendant at the District Court level should be able to waive a trial and proceed directly to a jury because of the collateral ancillary inconveniences of a District Court adjudication of guilt.

However, each of these positions, the position of the amicus and the position of the appellant, I suggest are based upon an independent due process question with respect to driver's licenses.

That is not the question that is before this Court.

I believe it's an important question but not a question that goes to whether or not this particular judgment is final.

We suggest that the redetermination of the question of guilt or innocence which is available in the Superior Court explicitly contraindicates that the earlier Boston Municipal Court decision determined this matter and in that regard we suggest that the Boston Municipal Court judgment is not final.

Additionally, we suggest that the decision made by the Boston --

Justice Byron R. White: May I suppose -- does that suggest that particularly in this case where whatever you call it, a proceeding is now pending in the Superior Court?

Mr. David A. Mills: We do not know that of record Your Honor, however, what we do know of record is that at the time that this particular appellant who was a defendant in the Boston Municipal Court on the day that he was found guilty in the Boston Municipal Court, the record indicates that he claimed an appeal.

As of record, we do not know what happened to that appeal or where it is.

Justice Byron R. White: Does your argument on finality rest at all in this case on the fact that he did claim an appeal?

Mr. David A. Mills: No, Your Honor, the option is available to this --

Justice Byron R. White: Whether he did or not?

Mr. David A. Mills: Whether he did or not.

Justice Byron R. White: You could still say the District Court judgment is not final for purposes of 1257?

Mr. David A. Mills: Yes, Your Honor because he had available to him under Massachusetts law, a redetermination and I equate redetermination somehow with the fact that it has not been fully determined if it is subject to redetermination.

Justice William H. Rehnquist: Mr. Mills, what do you understand his federal constitutional issue is here?

Mr. David A. Mills: His issue here Your Honor is whether or not he was deprived of a federally protected constitutional right when he was not provided with a jury in the first instance at the District Court.

Justice John Paul Stevens: How does he ever raise that up through the Massachusetts system?

He's found guilty in the Municipal Court, he claims an appeal and how does he present to the Superior Court his claim that having to go through the Municipal Court is a burden on his jury trial right?

Mr. David A. Mills: Your Honor, that question was explicitly noted by the Massachusetts Supreme Judicial Court in a September 1974 decision which has been submitted to this Court as an amendment to the appellant's original jurisdictional statement.

Justice John Paul Stevens: Again, how does he bring this to the -- before the Superior Court.

If he claims -- if he's tried there and found innocent, the case if over?

Mr. David A. Mills: Correct.

Justice John Paul Stevens: If he's tried there with a jury and found guilty, then what does he claim in the Superior?

How can he present that to the Superior Court?

Mr. David A. Mills: Well, he wouldn't be presenting it to the Superior Court, Your Honor.

He would be presenting it either to the Massachusetts Appeals Court or to the Massachusetts Supreme Judicial Court.

Justice John Paul Stevens: So when he's convicted in the Massa -- in the Superior Court, he then appeals and says, this conviction is invalid because why?

Mr. David A. Mills: Well, I don't think that he would say the conviction was invalid.

He would -- yes, he would say the conviction was invalid.

Let me answer your question Your Honor, you said by what vehicle?

Justice John Paul Stevens: Yes.

Mr. David A. Mills: The defendant in the Superior Court would file a motion to dismiss the complaint at the Superior Court level because the case was improperly there because he was not afforded a jury trial in the first instance.

Justice Potter Stewart: But he took the case there?

By definition didn't he?

Mr. David A. Mills: Yes, he did Your Honor.

He still has the jurisdiction to move that Court to dismiss the complaint for failure of constitutional prerequisites at the District Court level and were that motion to dismiss the complaint denied at the Superior Court level, he would take an exception and take his properly, if acquitted -- excuse me, if found guilty, take his properly perfected exception to the Massachusetts Appeals Court as of right and under certain conditions to the Massachusetts --

Justice John Paul Stevens: What will he say if say, he's found guilty after jury trial in Superior Court?

Now and what does he say to the Massachusetts Court of Appeals or to the Massachusetts Supreme Judicial Court?

What does he say?

Mr. David A. Mills: He says that it was error for the Superior Court to not grant his motion to dismiss because he was entitled to a jury trial in the first instance and he did not receive it.

Therefore, there is error, therefore --

Justice John Paul Stevens: The state comes back as it is but now you've been given a jury trial, you've been found guilty, you're just claiming an error for which there is no remedy.

Mr. David A. Mills: I suggest that's hypothetical Your Honor and contraindicated by the --

Justice Byron R. White: Was this ever a fact in what has happened under your procedure that someone's been convicted without a jury in the District Court?

Taken by appeal to the Superior Court, made the motion that you suggest these privileged is there to make, had it denied and convicted and then gone to either the Court of Appeals or the Supreme Judicial Court?

Mr. David A. Mills: It has not happened to my knowledge and I believe we would know.

Justice John Paul Stevens: Let's assume that that procedure just weren't open in the Massachusetts courts.

I suppose you would have to conclude that his federal issue had been finally decided in the state courts, by every Court that would decide it.

Let's -- I would suppose that if you' were right, if that kind of motion is open in the Superior Court and can be taken up through the state courts, you've got something to your finality -- I suppose.

Mr. David A. Mills: I suggest Your Honor that if the Massachusetts --

Justice John Paul Stevens: But if that is right, I don't think you may not have much to your finality, are you?

Mr. David A. Mills: Well, if the Massachusetts Supreme Judicial Court has suggested in its opinion of Whitmarsh versus the Commonwealth that that is an available vehicle for a plaintiff similarly situated then I suggest --

Justice John Paul Stevens: That suggestion is --

Justice Potter Stewart: Where is that case?

What is that case?

Is that in your (Voice Overlap)?

Mr. David A. Mills: September of 1974 Your Honor, Whitmarsh versus Commonwealth.

Justice John Paul Stevens: We have any way of sending this back to anybody to find out whether you or your adversary are right, have we?

For reconsideration in light of Whitmarsh.

This comes directly here from the District Court, doesn't it?

Mr. David A. Mills: Yes, this is not the Whitmarsh case.

Justice John Paul Stevens: I know, but have you have an intervening -- as I understand it, Whitmarsh has been decided since this judgment?

Mr. David A. Mills: Yes, that's correct, Your Honor.

Justice Potter Stewart: This brief.

This brief -- it's on the brief of the appellant on page 5 and he shows why that's inadequate for him?

Mr. David A. Mills: And we claim that it is adequate Your Honor.

So it is brief.

Justice William H. Rehnquist: Well, You're saying then that you would make the same argument in the Massachusetts Court of Appeals that he is making here now on the merits?

Mr. David A. Mills: I'm saying that that is possible, Your Honor.

Justice William H. Rehnquist: Yes, that it would be open to it anyway.

Justice John Paul Stevens: That's important.

You say that they would be open to it at least or it wouldn't be open.

Mr. David A. Mills: I say that it's open to him and if futility were a principle of finality, then perhaps finality would be defeated because as a matter of fact in law, the Supreme Judicial Court has since the filing of the jurisdictional statement in this case considered this constitutional issue twice in two different courts.

Justice John Paul Stevens: Well yes, we're the ones to decide finality.

Mr. David A. Mills: Correct Your Honor and that's why I say if utility were and which it is not.

Chief Justice Warren E. Burger: What are the circumstances in which the Supreme Judicial Court of Massachusetts could take the case directly from the District Court to said in passing under some circumstances, is it a certiorari jurisdiction or a certiorari before judgment?

Mr. David A. Mills: There is a procedural vehicle which is General Law Chapter 211 Section 3 under which this particular question has reached the highest Massachusetts Court twice.

Only in each instance although the Court did consider the issue, it's said that it was doing so for a matter or convenience and that the particular vehicle had been improperly used and so I would suggest that there is no direct route from the Boston Municipal Court to the Supreme Judicial Court.

It requires that the Intermediate Courts, the Superior Court and the Massachusetts Appeals Court be utilized.

Justice Potter Stewart: What procedure was followed in Whitmarsh?

Mr. David A. Mills: In Whitmarsh Your Honor, it was an interlocutory petition seeking the extraordinary relief powers in our highest Appellate Court under General Laws 211 Section 3 and the Court while noting that the vehicle for relief was improperly invoked, nonetheless, briefly gave its opinion as to the determination of the constitutional issue.

Justice Potter Stewart: Isn't Whitmarsh the critical case here?

It has to be in your posture doesn't it?

Mr. David A. Mills: No, Your Honor, not with respect to an argument on this Court's jurisdiction under Section 1257.

Justice Potter Stewart: Of course, it's here before us, Whitmarsh has been --

Mr. David A. Mills: No, Costarelli is before this Court.

Justice Potter Stewart: Well, Whitmarsh is too.

There is a petition for certiorari here that hasn't been acted on.

Mr. David A. Mills: Oh, correct.

Excuse me your Honor.

Whitmarsh is.

I would suggest however that the question of finality is not to be determined simply on that basis.

The question of finality we suggest under the decisions of this Court means that the appellate review be pursued in this particular case and it was not pursued in this particular case.

Justice Potter Stewart: Let me repeat my first question, are you not relying on what you call your Supreme Judicial Court?

Didn't Whitmarsh do what was your posture here without its opinion in Whitmarsh, wouldn't you be in a much weaker posture?

Mr. David A. Mills: With respect to jurisdiction?

Justice Potter Stewart: With respect to Costarelli's case in jurisdiction, yes.

Mr. David A. Mills: I don't believe so Your Honor.

The Boston Municipal Court we suggest for purposes of jurisdiction is not the highest court in Massachusetts in which a decision could be had on this question and I don't think that I need go on at length.

I have suggested that the Superior Court could make a determination.

It is a higher Court that the Massachusetts Appeals Court was available to this appellant as a matter of right, that is a still higher court and that further and substituted hearings might have been available before the Supreme Judicial Court which is a still higher and our highest court in Massachusetts.

We recognize that the highest Court in which a decision could be had need not be the highest Appellate Court of the state.

Nonetheless, we suggest that this question could have reached the Supreme Judicial Court and because that is the highest Court in which a decision could be had, this particular judgment is not.

Mr. Justice Rehnquist raised the question as to whether or not the determination of the Boston Municipal Court could be reviewed in another Court upon the record made in the District Court.

I think that that is a critical question.

I think that the answer is critical to each side in this particular case.

In Largent versus Texas which is cited I'm sure, I know in each of the briefs, this Court seems to have established a rule that if the conviction in the lower court is not examinable in a higher court on the record made in the lower court then the question has been finally determined for purposes of Section 1257.

If that is the rule that has been established by this Court, we suggest that mechanically, the Boston Municipal Court judgment cannot be reviewed in another Massachusetts Court on the record made in the Massachusetts Court.

However, an application of that rule, we have suggested would not really do justice to the substance of the fact and to the point in this case to which there seems to be no contest whatsoever.

The matter of guilt or innocence and the matter of whether or not the District Court judge was correct in denying a motion for a new trial, each of those two determinations made by the lower court are subject to redetermination.

We suggest accordingly that there has been not a determination, a final determination sufficient for purposes of Section 1257.

Justice William H. Rehnquist: Wasn't there too -- in Largent too though, are you asking us to overrule Largent?

Chief Justice Warren E. Burger: Yes.

Mr. David A. Mills: No, I don't fully underst -- to the extent that I read Largent, it seems to be opposite to the position that I argue to you today.

Yes, Your Honor.

It seems to be.

I'm not convinced that it is.

However, I am suggesting that in this Court, the substance of the determinations made by that lower court have not been fully determined and under the explicit language of the statute, there has been no final determination.

Justice William H. Rehnquist: Well, it sounds to me as if what you're contending for might leave open the possibility that if a defendant could get review on writ of prohibition or writ of mandamus.

The kind of thing where you file an original complaint, don't bring the record up so long as he could review some aspect of the proceedings in a higher court even though it's by an original action.

The lower court's proceedings wouldn't be final.

That would be a very significant departure from Largent.

Mr. David A. Mills: If Largent says what I believe it says Your Honor, it would be a significant departure.

Chief Justice Warren E. Burger: And your position, would at least acceptance of your position here, would at least require the Court to modify or explain some of the language in Largent at the very least.

Mr. David A. Mills: Yes, Your Honor.

Chief Justice Warren E. Burger: You would be able to agree with that would you?

Mr. David A. Mills: Or to be made more explicit yes, Your Honor.

Chief Justice Warren E. Burger: Because Largent said that if there's no review on the record in any other state tribunal, then it's final for purposes of coming here isn't that basically what it said?

Mr. David A. Mills: I believe it does, yes, Your Honor.

Chief Justice Warren E. Burger: And in this case, there is no review on the record in any other Court of Massachusetts.

Mr. David A. Mills: Correct, Your Honor.

Chief Justice Warren E. Burger: On a District or Boston Municipal Court proceeding.

Mr. David A. Mills: Of the record, you are correct, Your Honor.

Of the determinations --

Justice Potter Stewart: Why don't you just answer that there is more than that -- there is more than review of the record.

There is a way of having the judgment entirely automatically wiped out.

We settled that.

Why does that require anything -- any problem with Largent?

Mr. David A. Mills: Largent disturbs the Commonwealth Your Honor because it seems to explicitly establish a rule which cannot be complied with in this case and we suggest that a mechanical application --

Justice Potter Stewart: Then it can be more than complied with.

The state not only gives a review, it entirely gives a procedure whereby they don't care whether it's on the record it's valid or not.

We'll just get rid of it and start over.

Mr. David A. Mills: If Largent requires a record, there is no record here Your Honor.

We suggest there need be no record in view of the redetermination.

Justice Hugo L. Black: I have a little trouble with this wiping the record clean.

Mr. David A. Mills: Excuse me, --

Justice Hugo L. Black: I have a little trouble with your broad statement of wiping the record clean.

He files a notice of appeal to the Superior Court.

Right?

Mr. David A. Mills: Yes, Your Honor.

Justice Hugo L. Black: Then the record is wiped clear.

Right?

Mr. David A. Mills: Yes, Your Honor.

Justice Hugo L. Black: Can he go to Europe next week?

Mr. David A. Mills: I didn't hear you, Your Honor.

Justice Hugo L. Black: Can he go to Europe next week.

Mr. David A. Mills: No.

Justice Hugo L. Black: So it isn't clean is it?

Mr. David A. Mills: Yes, the record is clean.

He is still held as a criminal defendant on separate process for a separate proceeding which has been elected at his option --

Justice Hugo L. Black: At his option?

Did he have any other one?

Mr. David A. Mills: Three other options, yes Your Honor.

Justice Hugo L. Black: Going to jail being one of them.

Mr. David A. Mills: The language -- yes, Your Honor it is.

The language of wiping the record clean comes directly from Mann versus Commonwealth.

Justice Hugo L. Black: But you do admit that he is still held under charges.

Mr. David A. Mills: He is still a criminal defendant, subject to process and subject to further involvement in criminal proceedings in Massachusetts.

Justice Hugo L. Black: Would you object to in other words, again be put in jeopardy?

Mr. David A. Mills: Yes, I would Your Honor.

Justice Hugo L. Black: You object to that word?

Mr. David A. Mills: Yes, in view of this --

Justice Hugo L. Black: But is he already in jeopardy?

Mr. David A. Mills: He is, he remains in jeopardy.

Justice Hugo L. Black: From the first one?

Mr. David A. Mills: No, he is -- yes, he is again in jeopardy Your Honor.

Justice Hugo L. Black: Well, I thought you said it was wiped away, take it or leave it, one or the other.

Mr. David A. Mills: I suggest that it is wiped away Your Honor.

The District Court proceeding --

Justice Hugo L. Black: So there is a second jeopardy.

There's a second jeopardy?

Mr. David A. Mills: Not if second is equivalent with double Your Honor.

Justice Hugo L. Black: Well, have you ever heard of an appeal where you had a trial by jury?

In any other phase of jurisprudence?

Mr. David A. Mills: Perhaps this is inappropriately labeled under Massachusetts procedure as an appeal but I would suggest that the particular name or denomination --

Justice Hugo L. Black: Is it a trial de novo?

Mr. David A. Mills: It is a trial, Your Honor.

Justice Hugo L. Black: It's a trial.

That this man would then go through two trials?

Mr. David A. Mills: Two adjudications Your Honor.

Justice Hugo L. Black: Two trials?

Mr. David A. Mills: There are two trials.

Well, I would suggest Your Honor that the Massachusetts procedure by which a criminal defendant may undergo two trials complies, it may not be the best system.

We did not suggest in our brief that it was the best available system.

We do not argue today that it's the best available system.

We suggested it is a system that complies with this Court's decision in Duncan versus Louisiana which says that state criminal defendants be afforded the right to trial by jury.

We say that it adequately complies with this Fourteenth Amendment requirement and at the outset we suggest that the Court in Duncan versus Louisiana did not incorporate Callan versus Wilson and if this Court did incorporate Callan versus Wilson in that doctrine in the decision of Duncan versus Louisiana, that the Callan decision should be reviewed because it is based upon a suggestion of hypothetical reasons which are not the practical fact in this case.

Justice Thurgood Marshall: (Inaudible) this point with this question about having a trial by jury on appeal.

I know and I would suggest that if you go to the Supreme Court of Massachusetts, you don't get a jury.

Mr. David A. Mills: Correct.

Justice Thurgood Marshall: You just don't get juries in appellate courts.

Mr. David A. Mills: Correct, Your Honor.

Justice Thurgood Marshall: Except in Massachusetts and how many other states.

Mr. David A. Mills: We could call it in de novo states Your Honor, we have suggested that there are eight in the brief.

Justice Thurgood Marshall: Eight.

How many states are there -- once you asked for jury trial, it automatically goes to the court of general jurisdiction?

Mr. David A. Mills: We do not know Your Honor.

Justice Thurgood Marshall: There are several.

Mr. David A. Mills: The interaction of the --

Justice Thurgood Marshall: Was Rhode Island one?

Mr. David A. Mills: Rhode Island no longer is one --

Oh!

Yes, Rhode Island now is one under the Holliday decision.

Justice Thurgood Marshall: Several others.

Mr. David A. Mills: There are others but the --

Justice Thurgood Marshall: One right close to you.

Mr. David A. Mills: Yes, it is close.

New Hampshire is equally as close Your Honor and has a different system.

We have examined in our brief the colonial constitutional history of the original states and we find that the de novo system existed in Massachusetts dating from 1647, in New Hampshire from 1679, from Vermont, Connecticut, Rhode Island and Maine from the early 1700s.

We suggest that this constitutional colonial analysis in the brief is appropriate in view of the criteria that were used by this Court in Duncan versus Louisiana, the Williams case, the Apodaca case and the other recent cases in which this Court has considered the jury trial right with respect to state procedures.

We have examined contemporary practices among the states as this Court did in Duncan versus Louisiana and the results are contained in the brief.

We have suggested that the Massachusetts jury procedure fulfills the function and purpose of jury, that is the interposition of the common sense judgment of the group of laymen between an accuser and his accused.

In this regard, we would respectfully direct the Court's attention to the brief of the amicus file by the Massachusetts Defenders Committee which I think says better than the appellee has said in its brief that far from being oppressive, indeed the particular Massachusetts jury procedure system in question here may even contraindicate inconvenience let alone governmental oppression.

Finally, we have suggested that the speedy trial right is not an issue in this case as there is no measurable period of delay by which this Court can assess a delay in the terms of the criteria of Barker versus Wingo and we have suggested that the Massachusetts procedure is not violative of double jeopardy in view of this Court's decision in Colten versus Kentucky.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Hagopian?

Rebuttal of Robert W. Hagopian

Mr. Robert W. Hagopian: Mr. Chief Justice, the Massachusetts Defenders Committee filed a brief that I received last Friday and I would like to ask leave of Court to file a reply brief to that brief.

Either that or I would oppose its admissions at this late date.

Chief Justice Warren E. Burger: I was wondering there was just -- Mr. Mills just referred to an amicus brief and I don't --

Mr. Robert W. Hagopian: It probably hasn't even got here Your Honor and I'm opposed to its --

Justice Potter Stewart: It hasn't been circulated.

Justice Byron R. White: Was that in the amicus brief?

Mr. Robert W. Hagopian: Yes, Your Honor.

Justice Byron R. White: Was there permission to campaign?

Mr. Robert W. Hagopian: I assented to it at that time Your Honor but -- yes I did but I didn't assent to it being delivered here after oral arguments or the time of oral arguments.

I haven't had sufficient time to reply to that brief and there are matters in there that need their discussion.

Chief Justice Warren E. Burger: You may respond to it and your friend may comment on the response if you wish --

Mr. Robert W. Hagopian: Could I have leave to file a written response to that?

Chief Justice Warren E. Burger: Yes.

Mr. Robert W. Hagopian: A couple of small points --

Chief Justice Warren E. Burger: What do you want, five days, seven days,10 days?

Mr. Robert W. Hagopian: Your Honor, this is an informer's propers case and I have to send those down to Washington.

The printer is down here take some time.

Would I be asking for too much with 21 days?

Chief Justice Warren E. Burger: You may submit a typewritten form if you like in response.

Mr. Robert W. Hagopian: Oh, fine.

Chief Justice Warren E. Burger: I take it you're not going to file an extensive brief.

Mr. Robert W. Hagopian: That's correct Your Honor.

Yes.

Could I have 14 days?

Chief Justice Warren E. Burger: Very well.

Mr. Robert W. Hagopian: One thing I would like to mention to Mr. Justice White, there is a procedure in Massachusetts called submitting to a finding of facts in the lower Court which is equivalent to what you mentioned.

You simply remained silent.

The Government doesn't have to complete -- put all the evidence and will follow the rules of evidence, that is hearsay and things like that go in.

That's an informal procedure.

You still are judged guilty and there is no way of circumnavigating that and a sentence is passed upon you.

Justice Byron R. White: Is there a way that that you could raise in the Superior Court the question that -- the federal questions you want us to --

Mr. Robert W. Hagopian: I would suppose the double jeopardy issue certainly could be raised.

Justice Byron R. White: How about the jury trial?

Mr. Robert W. Hagopian: Well, it depends upon whether it's a reversible error.

The only other possibility is to simply allege that the District Court did not have jurisdiction but that's a fiction.

It had jurisdiction over the crime.

Justice Byron R. White: Here you are in the Superior Court and you're taking a case there for a trial de novo.

Mr. Robert W. Hagopian: Yes.

Justice Byron R. White: Now is there some way to present to the Superior Court have rules on --

Mr. Robert W. Hagopian: Other than a motion to dismiss on the grounds of double jeopardy, the answer is no.

There is no possible way of reviewing any error.

Let me give you a --

Justice Byron R. White: -- out here in the jury trial in the Superior Court, can you present the question that you want us to adjudicate here?

Mr. Robert W. Hagopian: Well, I suppose --

Justice Byron R. White: It will up those to the higher court of Massachusetts just like to present the case.

Mr. Robert W. Hagopian: Sure, the only grounds you could allege in the highest court in Massachusetts is that the trial judge in the Superior Court made a mistake when he denied my motion to dismiss on the grounds of double jeopardy.

Justice Byron R. White: Would they entertain that in the courts around here?

Mr. Robert W. Hagopian: Certainly.

But if the denial of a trial by jury in the first instance is a purely reversible error and it's not double jeopardy, then the claim that he's denied a trial by jury in the first instance is automatically mooted by the fact that he now has had a trial by jury and that's what the difficulty is.

Justice William H. Rehnquist: But if it's mooted in the Massachusetts Courts, why isn't it mooted here and if it's not mooted here, why is it mooted in the Massachusetts courts?

Mr. Robert W. Hagopian: It's not mooted here because of the fact that in Costarelli's case, the Chief Justice of the Superior Court has stayed the trial de novo.

He stayed those proceedings.

Justice William H. Rehnquist: But you say if he hadn't stayed them, then you have no case here.

Mr. Robert W. Hagopian: Absolutely.

Justice Byron R. White: I know but if the answer to you isn't here, Massachusetts courts would be just what you say they are.

Nevertheless, that's the way it is, that may be a wrong answer.

It constitutionally may be wrong.

Mr. Robert W. Hagopian: The issue of mootness yes.

Justice Byron R. White: That is if you could present the issue in the lower courts.

Mr. Robert W. Hagopian: That's correct.

Justice Byron R. White: We can have it suppose to rule on.

Mr. Robert W. Hagopian: That's correct.

Justice Byron R. White: Then why didn't you?

Mr. Robert W. Hagopian: Well, I have in Costarelli's case.

That motion is pending in the Superior Court.

Justice Byron R. White: Why is the judgment final?

Why then have you reached -- how come you have a stay in the judgment of the highest court --

Mr. Robert W. Hagopian: Because of the fact that that is a collateral means of reviewing that judgment in the District Court of Massachusetts, it's a collateral means, a man should not have to suffer a second trial to review the error that was made in the District Court and that is the nub of Section 1257.

That's Largent versus Texas.

A man should not have to collaterally attack.

The only issue as to whether the jurisdiction in this Court is pending is --

Justice Byron R. White: There is no -- there is no trial de novo procedure available in Largent, that was wholly federal habeas and they said federal habeas was not available to raise the constitutional question to solve this.

Mr. Robert W. Hagopian: I believe in Largent, they said --

Justice Byron R. White: There is no other place it could go.

Mr. Robert W. Hagopian: I believe that there were collateral remedies open in the Texas system in Largent in which he could've raised the issue collaterally.

Justice Byron R. White: That may be so but the court didn't have.

You said there weren't any.

Mr. Robert W. Hagopian: Oh, I believe this Court mentioned it in this -- in its opinion.

It said and I quote to you Your Honor.

It says that the fact that there were collateral remedies open does not affect this Court's jurisdiction and that is the key --

Justice Byron R. White: Notice the fact that over a federal question where it switches to federal remedies just when he may --

Mr. Robert W. Hagopian: It says it but this Court stated, it says the possibility that the appellant might obtain release by a subsequent and distinct proceedings and one not in the nature of the review of the pending charge, in the same or a different Court of a state does not affect the finality of an existing judgment or the fact that this judgment was obtain in the highest state court available to the appellant.

I read that language as simply saying that because a man may collaterally attack a judgment in the District Court or the lower court in Massachusetts is irrelevant to this Court's jurisdiction under 1257.

Justice William H. Rehnquist: But in Largent, the state proceeding left the judgment final and in effect and here you have a very ready remedy.

Mr. Robert W. Hagopian: Well, that remedy was taken under compulsion.

Supposing I hadn't taken that remedy, I don't think the fact what I did in the state court should affect this Court's jurisdiction.

Justice William H. Rehnquist: Well, that's like saying supposing you don't appeal from the Superior Court of Massachusetts to the Supreme Court, you've got to.

Mr. Robert W. Hagopian: I submit to you that that is an entirely different matter.

The fact that a man should not have to go through a second trial, a second trial, that does not review the record of the first court.

Justice William H. Rehnquist: Well, there's a certain irony in your case and in your opponent's case because the more you make the thing look like an appeal, the worse of you are in the jurisdictional basis but the better off you are in the constitutional merits.

The same is true in reverse of your opponent's case.

The more he can make the second proceeding look like an appeal, the better he looks jurisdictionally but the worse it looks on the merit.

Mr. Robert W. Hagopian: Yes, sir.

Chief Justice Warren E. Burger: Thank you.

Mr. Hagopian, you appeared here at our request and by the appointment of the Court.

I want to thank you for your assistance to the Court and of course the assistance of your client.

Mr. Robert W. Hagopian: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Palmore v. United States - Oral Argument

Thu, 23 Aug 2012 18:23:43 +0000

Case:

Palmore v. United States

Media File:

72-11_19730221-argument.mp3

Related Transcript:

72-11_19730221-argument

Transcript:

Argument of Frank F. Flegal

Chief Justice Warren E. Burger: We will hear arguments next in 72-11 Palmore against the United States.

Mr. Flegal.

Mr. Frank F. Flegal: Mr. Chief Justice, may it please the court.

On February the 1st, 1971 the District of Columbia Court Reorganization Act became effective.

Among other things that act created the Superior Court of the District of Columbia, a court and its judges hold office for limited terms and vested jurisdiction in that court to hear and determine certain felony charges brought by the United States of America against persons accused violating acts of congress applicable exclusively to the District of Columbia.

The courts below and the parties have tended to call such acts, local statutes.

On February 23rd of 1971, appellant was indicted in the Superior Court for violation of such a statute.

The crime of carrying a dangerous weapon, in this case, a gun without a permit having been issued in accordance with law.

Since appellant had previously been convicted of another and an unrelated felony and that prior conviction is not an issue here.

The charge against him was a felony charge, if convicted he stood do face imprisonment for up to ten years.

Prior to trial appellant challenged the jurisdiction of the Superior Court.

He claimed that he was entitled to have his case heard and determined by a constitutional court that is of course, a court was then been established in accordance with Article III and presided over by a judge holding office during good behavior.

Justice William J. Brennan: And his claim was based upon the fact that this was a felony charge?

Mr. Frank F. Flegal: Yes sir it was.

Justice William J. Brennan: In other words, he at least implicitly conceded that he could have been charged honest to mere charge?

Mr. Frank F. Flegal: Yes, indeed so sir.

We make a distinction here and let me just briefly elude to it now and then when we get to the argument address it in full.

Historically, as this court is dealt with in the Article III jury trial cases.

There has been a distinction between minor or petty cases.

Historically, as this court pointed out in the Clawans case, 300 United States.

English judges prior to the adoption of the constitution, judges not of the general jurisdiction of England, held and heard and determine minor matters involving up to one year imprisonment.

Congress has always assumed that to be the case in the District of Columbia and indeed nor has magistrates in the several states, non Article III officers hearing such minor matters.

For purposes of our argument we assume that there is a class of matter and we assume although this court has never decided that a misdemeanor and one year is the appropriate constitutional judgement.

There is a historical basis for that.

Justice William J. Brennan: There maybe a difference between a “petty offense” and misdemeanor.

Mr. Frank F. Flegal: Indeed there maybe --

Justice William J. Brennan: Any event, you say that maybe that whatever the--

Mr. Frank F. Flegal: In any event whatever the law and event, a felony is our proposition in this case.

After that motion was overruled, the trial court proceeded to consider appellants motion to suppress evidence which was based upon appellants Fourth Amendment contention that the method by which police officers obtained the evidence in this case, the gun, was a result of an unreasonable seizure of appellants purse.

The court heard evidence and I put aside for the moment the details of that evidence so that it would be freshly at hand when returned to the Fourth Amendment argument, Fourth Amendment position later in the argument and having heard that evidence overruled appellant's objection.

Appellant elected to stand on the legal issue which had been raised and trial by jury having been waived, the trial court found appellant guilty of the charge against it.

He was subsequently sentenced to from 2-6 years in prison.

Execution of the sentence was suspended except for 180 days imprisonment on condition of six years probation.

An appeal was taken to the District of Columbia Court of Appeals and that court affirmed the judgement.

Thereafter appellant review was sought in this court.

We sought review by filing a notice of appeal in the District of Columbia Court of Appeals and docketing a jurisdictional statement in this court.

On October 10, 1972 this court entered an order placing this case on its hearing calendar but postponing the question of jurisdiction until the argument of the case on the merits.

Accordingly I return to that threshold question.

Strictly speaking of course, it is not a question of this courts appellate jurisdiction.

For all parties can see that this court has a jurisdiction to review the judgement of the District of Columbia Court of Appeals in this case.

The question is rather a statutory question.

The mode or the manner by which we should have invoked this court's appellate jurisdiction.

It is our contention that when congress as it has done in the District of Columbia Courts, creates a local court system and vest that local court system with jurisdiction to hear local matters and provides that appeals from the highest local court shall we taken to this court in accordance with the general provision of section 1257 of the Judicial Court.

Locally applicable laws constitute a law of a state within the meaning of 1257 subdivision 2.

For that proposition we place of course, principal reliance on the analogous case of Balzac against Porto Rico, decided 50 years ago where congress provided the judgments of the Supreme Court of Porto Rico would be reviewed in this court, in accordance with 1257 and the issue in Balzac was whether or not a statute applicable exclusively to Porto Rico was there by dimmed to be a statute of a state.

In a unanimous opinion written by Chief Justice Taft, this court held that it was.

Now it's quite as the government points out that the legislature that had enacted the statute in Balzac was a territorial legislature not the United States congress but that fact played no articulable part in this court's opinion.

Rather the Chief Justice focused on the manifesting intent of congress.

A point of course, which this court reiterated just last month in the Canter case, the intent of congress in enacting and providing for such a method of review.

For reason set forth in Balzac and articulated in our opinion, we think this case is properly heard on appeal.

At the outset of course, by the filing right jurisdiction papers and again in our brief we have invoked in the alternative, the certiorari jurisdiction of this court in the even that we are on.

But of course, having the case here whether by certiorari or appeal does not answer the question which was raised and overruled in the trial court.

Was appellant entitled to have his case heard and determined by a constitutional court?

Article III discussions tend frequently to become academic and there are several nuances in Article III issues and the parties have pursued those in their brief.

Justice William J. Brennan: You don't submit or do you that the answer to the first question necessarily controls the answer to the second?

Mr. Frank F. Flegal: Here is nothing to do with the answer of the second.

First question is purely a statutory construction.

Justice William J. Brennan: Whether it's an appeal or –

Mr. Frank F. Flegal: Certiorari –

Justice William J. Brennan: Certiorari here and that's basically a question unrelated to --

Mr. Frank F. Flegal: Completely unrelated, it's the mode of seeking review the statutory mode and it's purely a question of statutory interpretation.

On the merits however, it.

Justice Byron R. White: (Inaudible)

Mr. Frank F. Flegal: For purposes of a statute, Your Honor, not for purposes of Article III section one of the constitution.

Justice Byron R. White: I mean that’s the question.

Mr. Frank F. Flegal: That is the question.

Excuse me, of course, that is the question on the first proposition the appeal as opposed to certiorari.

Justice Byron R. White: (Inaudible) different answer?

Mr. Frank F. Flegal: Indeed I answer.

Indeed I am suggesting.

Justice Byron R. White: You do?

Mr. Frank F. Flegal: I do get different answers and I say that because under the statute the question of course is purely one of statutory construction what did congress intent under Article III of the constitution.

We have of course a constitutional issue what did the framers mean and it is not conceded.

The Government does not oppose the proposition, that went in the meaning of Article III of the constitution and act of congress that will be if one applicable only to the District of Columbia is of course, a law of the United States.

That's the only basis by which this court's appellate jurisdiction from the beginning of the republic with respect to local District of Columbia matters not otherwise involving a constitutional issue can be sustained.

Our preposition is that the article III protection for the independence of the Federal Judge that is the good behavior tenure and the associated constitutional restrictions control of course, important rights on the judge.

But principally an important claim for purposes of this case, they also confer rights and benefits and safeguard on the litigants.

Now that is a preposition which the government contested at the outset of this case.

At the threshold stage, the government suggested that we did not have standing to raise this issue.

They have abandoned that in their brief and I think properly so.

This court has addressed the meaning of the good behavior clause as it effects litigants.

Time and again, and what I don't want to deliver the point, I want to emphasize two cases on which we principally rely and that is of course, the O'Donoghue case where this court trace the meaning of Article III with respect to litigants.

In O'Donoghue this court referred for example, to one of the specific complaints which desires of the declaration had made.

The judges were being limited in their tenure and having their salaries reduced and in O'Donoghue and again in Lark and the court-martial cases.

Parker and O'Callahan.

Justice William H. Rehnquist: O'Donoghue, he is a judge, was he not?

Mr. Frank F. Flegal: O'Donoghue was a judge, Your Honor.

However Toth and O'Callahan were litigants as was Larkin the litigant in the companion case in Glidden v. Zdanok and in Lark, this Court referred to the protection designed in part for the protection of the litigant and that is the protection which we saught.

Justice William J. Brennan: That was Justice Harlan's opinion?

Mr. Frank F. Flegal: That was the plurality opinion, yes, Your Honor.

Justice William J. Brennan: Yes.

Mr. Frank F. Flegal: The plurality opinion by Mr. Justice Harlan.

Justice William J. Brennan: It was not a Court opinion.

Mr. Frank F. Flegal: Not a Court opinion in Lark.

Of course, it is Mr. Justice Black's plurality opinion in part, a Court opinion in O'Callahan, all dealing with litigants and all referring to the right by the contort on the litigant.

Now, of course, there can be no contention here as was the issue in Lark that appellant did receive an Article 3 Judge.

The judge that presided in our trial holds office for 15 years, not good behavior.

He is not subject to protection from diminishment of his salary and he is not answerable only to the other branches of Government through the impeachment process, he is answerable to a commission.

The Commission on Judicial disabilities and tenure which consists of five members, three of them are appointed by the President of the United States.

The fourth by the Mayor Commissioner of the District of Columbia who in turn, of course, is appointed by the President and the fifth, by the Chief Judge of the District Court.

Any four members of that Commission have power after holding appropriate proceedings to remove the judge and if he is removed, if a Commission Order is entered, his salary instantly stops, pending his resort to judicial review and his judicial--

Chief Justice Warren E. Burger: In general, is this statute to somewhat like that of California like in the other states?

Mr. Frank F. Flegal: Somewhat, yes, quite like a state, Your Honor but of course, totally foreign to Article 3.

The review is sought by firing and Notice of Appeal with Your Honor, who is there upon called to designate a special three-judge tribunal consisting on Circuit and/or district judges to finally hear and determine.

So, thanks to the right we claimed.

Justice William H. Rehnquist: Mr. Flegal, you say totally alien to Article 3.

Are you suggesting that the good behavior or language of Article 3 could be implemented only by the process of impeachment?

Mr. Frank F. Flegal: At least with respect to the other two branches of Government, Your Honor.

It is not add issue in this case as to whether within the judicial branch the chamber problems, whether there is within the judicial branch some power of superintendence of the performance of lower court or inferior judges.

Our proposition is that the impeachment clause is the only way the other branches of Government can oversee the performance of judges.

Justice Potter Stewart: That really is basically unanswered question, isn't it?

Mr. Frank F. Flegal: Oh, of course, of course and it is a question which is not raised in that case.

There is no question here that the judicial disabilities and tenure commission is a body of good behavior judges but our proposition turns on the other two branches of Government, not the judiciary, Your Honor.

Justice Potter Stewart: Well, even the first, even these are the ways the other two branches of Government, it is not a wholly established--

Mr. Frank F. Flegal: It is not a wholly established principle, that's right and so--

Justice Potter Stewart: And further, it is conceded that these are not articles three judge --

Mr. Frank F. Flegal: Precisely, Your Honor, precisely and of course, there is no holding --

Justice Potter Stewart: Consensus conceded, there is no need for you to so many time proving that part.

Mr. Frank F. Flegal: Yes, the question then arises, are we entitled to this right?

If Article 3 safeguards and benefits mean anything, if the founders did not accomplish a fruitless act in so far as litigants are concerned, then of course, we contend that the felony class of case has to be included within these protections.

In other words, if anyone is to get these benefits other than perhaps judges, if any litigant is a felony litigant must have them because no other place that we can conceive would rise to greater constitutional dignity.

Perhaps others, perhaps constitutional questions would be similar but nothing would be higher.

Then why, according to the courts below and the Government are we not entitled to this constitutional protection.

The Government suggests that there is no requirement in Article 3 that Congress afford this constitutional right to any litigant and the government supports this proposition by suggesting that with respect to at least any one of the enumerated legislative powers of Congress and this is an argument which is not limited to the District of Columbia, either in the district or in the several states, Congress may create a so-called legislative court, a non-constitutional court and thereby deprive us of the benefits and safeguards to which this Court has repeatedly referred.

Chief Justice Warren E. Burger: Now you emphasize these benefits and safeguards but those are benefits and safeguards that most of the citizens and most of the states do not have.

Mr. Frank F. Flegal: Oh precisely, it is not a Fourteenth Amendment benefit and safeguard at all, Your Honor and we don't contend that it is.

Chief Justice Warren E. Burger: Yeah, that is what made me wonder about your great emphasis on it since most of the 200 million people in the country are subject to it.

Mr. Frank F. Flegal: Right, our contention, of course, is that the original constitution and certain protections in the first Ten Amendments, for example, grand jury indictment Article 3 in Sixth Amendment trial by jury are of course rights which are afforded litigants when the Federal Judicial powers brought to bed, not necessarily required under the Fourteenth Amendment in the States.

We make no contention that there is anything fundamentally unfair in the Fourteenth Amendment sense about having judges with limited tenure.

Our proposition is the framers gave a right in Article 3 beyond that, which Fourteenth Amendment due process would require to be afforded.

Government says that because under the supremacy clause, Congress could argue and though require State courts to hear and determine federal felonies that’s the end of the inquiry.

If they can require this case to be heard in a State court, the Government argues.

Then of course, a State court judge following up on Your Honor's proposition would not hold life tenure and why are we entitled to it?

I suggest the distinction which Your Honor's question focuses is precisely the fallacy of the Government's argument.

In the first place, when a State court hears a case, whether or not that case arises under State law or arises out of an active Congress which the State is enforcing under the supremacy clause, the State is exercising the State's judicial power, not the judicial power of the United States and Article 3 by its terms is a limitation on Federal not State judicial power and taken one step further, the proposition that was addressed by the Chief Justice's question, the Government's position puts Federal Courts on the plain of the Fourteenth Amendment.

The Government's argument carried to its logical extension, create a non-article 3 court because you could create a state, you could require a State court to do it, means that any right that a federal defendant has that a Fourteenth Amendment defendant in the State court does not have could be deprived and I don't think that is the law, I don't think the Congress can deprive a federal litigant of a grand jury enticement, even though a state may not have to provide it or of an Article 3 jury or of an Article 3 judge.

What then does the Government argue beyond that?

The Government relies, of course, on the legislative court cases.

The Government says that there is a judicial power outside of Article 3 which is co-extensive with that conferred in Article 3.

This Court has never so held, this Court has never so held.

In the permanent part of the United States, this Court has always carefully looked at the nature of the matter being adjudicated by the so-called Legislative Court and if that matter was a subject for which the litigant had to right to claim judicial determination, if it was subject to being disposed off by exercise of another power, legislative or executive, then the Court has said, it is permissible to have the matter adjudicated in a Legislative Court.

There has never been even a piece of dicta in one of this Court's legislative court cases which would suggest that a non-article 3 court could hear and determine a felony and impose a felony punishment.

Justice Potter Stewart: Back in the days when-- whether now the interior states of the United States with territories, Utah and so on, the territorial courts out there, of course, trial felonies including capital offenses, were those are Article Three Judges?

Mr. Frank F. Flegal: It is an interesting question on theory, Your Honor.

Justice Harlan and his plurality opinion in Glidden against Zdanok said yes, they were, that they were Article 3 judges exercising Article 3 judicial power but exempt because of the peculiar temporary status of the territories from Article 3 tenure requirement.

Justice Potter Stewart: What’s exactly? [Voice Overlap]

Mr. Frank F. Flegal: I think what it means –

Justice Potter Stewart: I joined that opinion, but what, maybe I knew what it meant when I joined that.

Mr. Frank F. Flegal: I think what it means Your Honor.

I think what Justice Harlan had in mind was the nature of the matters they were determining, where the kind of matters including felonies which could only be adjudicated by an Article 3 court.

Therefore, they had to be exercising the judicial power of Article 3.

Justice Potter Stewart: Is that a circular argument?

Mr. Frank F. Flegal: That is right.

He then said, however, because of the temporary status of the territories, they were exempt from the good behavior clause.

That more recently, this Court in the Carter case and back in O' Donoghue said, they weren’t Article 3 Judges at all.

They were always Article 4 judges exercising the power conferred upon Congress under the territories clause, the acquisition clause outside of and this we think is the important point in this case.

Justice Potter Stewart: How, in fact, were those judges nominated and appointed and what tenure did they have?

Did they not guarantee--?

Mr. Frank F. Flegal: Various proposals had been used in the different territories, Your Honor.

Sometimes, the President appointed and Congress confirmed and other times, local legislatures or the territorial Governor confirmed the territorial judges but they all said, for limited terms of office.

At the present time, we have several kinds of territorial judges.

Those of Puerto Rico are appointed by the President with the advice and consent of the Senate and hold their office during at least statutory good behavior and yet as the government has pointed out in its brief out in Samoa, for example, the President of the United States appoints the officer or official to exercise the judicial power.

But the critical point and why we distinguish the territorial court cases is all of those have dealt with temporary necessity out in non permanent parts of the Federal union.

Argument of Unk

Unk: And like subpoena?

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: I beg your pardon.

Rebuttal of Unk

Unk: Like subpoena?

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: Yes, Your Honor.

Chief Justice Warren E. Burger: From Alaska, when did we buy Alaska from Russia?

Mr. Frank F. Flegal: A way back Your Honor.

Chief Justice Warren E. Burger: And they continued to the temporary status for about a hundred and some years.

Mr. Frank F. Flegal: Right, perhaps I should have prefaced my statement as constitutional temporary status.

In other words, the first three articles of the constitution which include the states and the District of Columbia, that's the permanent union.

Then the territories may or may not join that union either as states or perhaps under some other arrangement.

But until they do, they are not constitutionally permanent.

We can sale the territory, relinquish it, return it to another sovereign and so forth.

Justice William H. Rehnquist: Well, Mr. Flegal if you follow Justice Harlan’s analysis in the Glidden v. Zdanok, the litigants in these territorial courts I mean presumably the sentence is imposed on them are rather permanent, rather than temporary.

Mr. Frank F. Flegal: Indeed so, Your Honor including Capital Punishment, indeed so.

Justice William H. Rehnquist: They were exempt from having no rights enforced in those cases?

Mr. Frank F. Flegal: They indeed were Your Honor.

The litigants in the territorial court cases did not get the constitutional benefit that we seek here.

Now this court has rejected however the territorial court argument whenever it has been made to deprive a District of Columbia litigant of a constitutional right.

I go back for example to Callan v. Wilson.

The first case in this court dealing with the constitutional rights of the citizens of the District of Columbia, that case involved Article III, Section 2 trial by jury and the Sixth Amendment trial by jury and the argument was made.

The District of Columbia is like a territory there is plenary legislative power, you don't get the constitutional right and this court rejected that argument.

It rejected the territorial analogy in holding that Judge O'Donoghue's salary could not be reduced during his tenure in his office and as recently as last month this court distinguished the territorial courts created under Article IV from the District of Columbia courts created under Article 3.

Justice William H. Rehnquist: And was it for purposes of the Civil Rights Act?

Mr. Frank F. Flegal: Yes.

So that the point I am making is whether they were Article 4 courts exercising Article 4 powers and thereby the litigants were not entitled to claim an Article 3 right.

Or whether as Justice Harlan suggested in his plurality opinion in Glidden they were exercising Article III power but exempt from the good behavior tenure.

It does not have controlling bearing on this case.

Now what then is left?

What is left of course, is the plenary legislative power of Congress over the District of Columbia and in the course of discussing the territorial court cases, I have already outlined of course our position on that.

The District of Columbia is permanent, this court has already held that each time a constitutional right was claimed to be denied because to a litigant because the District of Columbia was somehow unique.

This court has rejected that argument.

Justice Byron R. White: Is that with the territory other than the District court of Columbia?

Mr. Frank F. Flegal: No, not that I know off Your Honor.

My point is that the citizens of the District of Columbia before the Federal Courts have all of the rights of the original constitution and the amendments, whether or not the territorial litigants were deprived of the right we seek here by virtue of a Fourth Amendment theory or an article III temporary status theory.

But we don't think its determinative.

Justice Byron R. White: You still have the, I suppose you will demonstrates that the law that you have issued here before the statute is being forced as law in the United States?

Mr. Frank F. Flegal: Yes sir, indeed so because of course that is essential to our proposition.

The government has not argued otherwise but let me just briefly address that right now Your Honor.

The earliest case --

Justice Byron R. White: This shows that you are talking about Article III power.

Mr. Frank F. Flegal: Article III power, of course, because if our case did not arise under Article III we haven't got any way to bring direct --

Justice Byron R. White: So, your case has arisen under law of the United States.

Mr. Frank F. Flegal: That's correct the only power that we seek to invoke here is the law of the United States.

So there was nothing to do with any other of the matters to which the judicial power extends.

It has been repeatedly held, both in the decisions of this court and in decisions of the early District of Columbia courts, going back as early as 1805 an opinion which Chief Justice Marshall participated while sitting on circuit that laws applicable exclusively to the District of Columbia are laws of the United States.

Indeed they must be so or this court could not review a local matter as it has historically done that was not otherwise presented with a constitutional issue.

As recently for example, as 1965 I believe it was this court decided purely on a basis of statutory construction a tax matter arising out of the District of Columbia taxing statutes.

Of course the only power this court would have to construe that statute and it was not a constitutional claim, it was a statutory claim would be if that' statute was a law of the United States.

The first chief Judge of the local courts in the District of Columbia, Chief Judge Crench (ph) who also --

Justice Byron R. White: Why do you say that?

Mr. Frank F. Flegal: Why do I say that this court could not because no other power in Article III would purport to give this court the power to construe a statute that was not a statute of the United States, a law of the United States or --

Justice Byron R. White: What about in diversity cases?

Mr. Frank F. Flegal: Well in Diversity cases of course, then you have a power, if the case arises that diversity of citizenship, the status of the parties confers jurisdiction to deal with the case in controversy and issue between them regardless of the nature of the suit but the District of Columbia against General Motors which is the case I referred to was not a diversity suit.

It came to this court with no other basis for Article III jurisdiction except the construction of the statute.

We have collected in our brief, similar cases which go back through the 19th century and we have cited in our brief from the very first territorial court case incidentally.

American Insurance Company v. Canter the statement of Mr. Justice Johnson who sat on circuit on that case that if law is applicable to exclusively to the District of Columbia are not laws of the United States, this court, the Supreme Court has no power to review them.

And in the course of that argument he rejected that proposition and said, laws applicable exclusively to the District of Columbia are laws of the United States.

The question then finally arises is there something in the plenary legislative power given Congress under Section 17 rather clause 17 of the Article I, Section 8, the so called plenary power over the District of Columbia that somehow relates to the constitutional right at stake here.

We say not, we say not for two reasons.

First, that plenary power is not limited to the District of Columbia.

That's the power that provides not only for exclusive legislation over the seat of government but also of course Federal Enclaves and forts out in several states so that this argument is not strictly limited to the District of Columbia.

Beyond that this court has always held and I think correctly that when you are dealing with the exclusive and the plenary legislative power of congress that may mean congress is free of any other restriction in Article I but it does not exempts Congress from other provision in the body or the bill of rights of the constitution.

Chief Justice Warren E. Burger: But doesn't the constitution, the framers go to some pains to single out the District of Columbia procedure of government in defining the plenary powers that you are talking about?

Mr. Frank F. Flegal: Indeed they do sir.

And the pains that they went through is embodied in of course Clause 17 of Section 8 of Article I and that is the plenary legislative and I underlined that word legislative power given Congress that means --

Chief Justice Warren E. Burger: Well the state has, when we think of a state having legislative power does that not include the power to create courts?

Mr. Frank F. Flegal: Oh!

Clearly, if a state --

Chief Justice Warren E. Burger: The legislative powers if the Congress include the power to create courts and define jurisdictions courts and the tenure of the judges.

Mr. Frank F. Flegal: Now that's where we disagree.

Our proposition is the District of Columbia of course is not a state.

The seat of government was a state at one time and it was Maryland in Virginia.

It was seated to an exclusive federal jurisdiction attached in 1801 under the Session Act.

At that point, Congress is not strictly speaking a state legislature.

This court has already held that Congress is barren by provisions which don't bind a state legislature when dealing with local matters.

I refer again to the Fifth Amendment Grand Jury indictment and the Article III and the Sixth Amendment right to a jury trial.

A state legislature is not bound by those provisions.

Congress when acting and legislating locally for the District of Columbia is --

Chief Justice Warren E. Burger: But what you are arguing now is that the defendant has the same right to an Article III judge on the same constitutional level is the right to be indicted by a grand Jury and then all the others?

Mr. Frank F. Flegal: Indeed sir.

We are claiming the same safeguard that this court referred to in the Court Martial case is starting with Toth, O'Callahan, Lark, O'Donoghue, this is the right of the federal litigant, this is the right we claim.

Indeed we think the Colts case which is 282 United States cited in our brief is directly on point.

In that case, in our local case arising out of the District of Columbia, this Courts squarely held that a local litigant was entitled to the safeguards of Section 2 of Article 3, the jury trial.

There is no reference in the Colts case to the Sixth Amendment, purely Section 2 Article 3.

Justice William H. Rehnquist: Mr. Flegal, under your theory, could Congress vest the appointment of judges in the District of Columbia and other one, anyone other than the President of the United States?

Mr. Frank F. Flegal: Yes, under the constitution, Your Honor, the appointment of officers of the judges can also be vested in the President alone, without conformation or in the head of the department.

Justice William H. Rehnquist: That is if there are inferior officers under that section of the constitution.

Mr. Frank F. Flegal: Yes.

Justice William H. Rehnquist: But what leads you to say that such judges could be treated as inferior officers?

Is that term is used in the brief too?

Mr. Frank F. Flegal: The reason that bids me to say that Your Honor is there is nothing else in the appointing part of Article 2 that distinguishes judges from those inferior officers.

In other words, Article 2 reads that unless Congress shall by law otherwise provide the presidential appoint and the congress shall give their advice in consent but by law congress may vest the appointment of the inferior officers in the present law and order in ahead of a department.

Now the final, of course, question raised by this case is whether or not, we were entitled to have our notion to suppress granted by a constitutional judge or by a non-constitutional judge, that is a separate issue and it's an issue equally dis-positive of this case; for on this record without the evidence we sought to have suppress, there is no evidence to support appellant's conviction.

That requires, of course, written briefly in the facts.

They are not in dispute.

At the trial court, appellant and his witness gave a different version of this encounter than did the police officers.

We have not contained it on appeal and we do not contained here that the trial judge was bound to believe our witness rather our position is on the police officers version of the events.

Appellants right to be free from unreasonable seizures was violated.

What were the facts?

Appellant was driving a car by 8'0 clock in the evening on the 600 Block of T-Street in Downtown Washington.

At that point in time, he had violated no law, no traffic ordinance, he had no apparent equipment defect and there is no contention, there has been no contention in any court below and there is no contention here, that the officers were possessed of any articulable facts to show that he had been, was or was about to be engaged in any criminal conduct.

This was a matter of a specific finding by the Court of Appeals.

Two plain clothes officers assign to the special operations division of the District of Columbia Police Department decided that they would stop appellant for what has been described in this record as a spot-check or a traffic-check or in one place, a rental agreement check.

They turned on their red lights and their siren and they force the appellant to the side of the road.

Appellant produce the driver's license and was asked to return to the car and obtain a copy of his rental agreement form and I interject the officers of plain, that they knew this was a rental agreement car rather a rental car because of the special serial numbers on the license plate.

An officer was thereupon engaged in discussing with appellant, an appellant discrepancy in the exploration date of his rental agreement.

When a fellow officer who had been on the passenger side of the car shining a flashlight into the interior discovered the gun, sees the gun and arrested appellant.

Our contention is at the moment appellant was stopped, at the moment he was stopped for this license at spot-check, his Fourth Amendment rights against unreasonable seizures had been infringed.

It is important to point out that in this case there is no congressional statute which on its face, purports to authorize police officers to stop citizens for purpose of inspecting either driver's licenses or motor vehicle registrations.

The statutes do require that citizens carry both of those documents while they operate a car.

And the driver's license statute does require that a citizen display that license to a police officer but it does not specifically provide that the officer is entitle to stop in order to ask for the display.

Justice William H. Rehnquist: Do you say that a police officer could not spot-check for driver's licenses in the districts?

Mr. Frank F. Flegal: Our position is that a police officer acting without standards set out by somebody either the legislature perhaps the commissioners or the District of Columbia or at least the higher officials in the police department.

He cannot be left to his own discretion to pick anybody else that he wants out for a spot-check and I say that for this reason.

On this record, the officer who made this spot-check said that I have no basis, I have been given no instructions as to how or whom I should stop.

I think it's up to me to pick people out and I pick rental cars because I think a lot of them are overdue.

I want to see if the man can prove that it's not overdue because it's a crime if it is overdue.

He also referred to the fact that on another occasion a fellow officer had found $6,000 with of narcotics in a rental car.

Leaving it to the unfettered and unarticulated standards of the police officer on the corner, simply poses too great and too unreasonable, a restriction with a right of free movement.

We don't see in contemporary urban society any great difference between walking down the street and driving.

Justice William H. Rehnquist: Oh, it's that that you've to be license to drive down the street, you don't have to be licensed to walk down?

Mr. Frank F. Flegal: Oh, clearly, clearly, but I am talking in terms of justifiable expectation of privacy.

You may will have to submit to reasonable and perhaps spot-checks but the question is not is at spot-check, that's what we think the court below made the mistake.

The question is, is this a reasonable spot-check and we say when it is done on an individual basis by a police officer given no standards by anybody, stopping them for his own reasons, that's what makes it unreasonable.

I think I should call to the courts attention, the case which was decided in the Supreme Court of Pennsylvania and we were unable to include it in our brief so that we will shortly do so in a formal amendment.

You know we only get the opinion yesterday, the Supreme Court of Pennsylvania, the case is Commonwealth against Swanger has since squarely so held.

It is simply unreasonable for police officers acting on their own to stop for spot-checks and the Pennsylvania case, if anything there was a much more compelling state requirement because Pennsylvania had a statute, the case is based squarely on the Fourth Amendment, squarely on the principles in (Inaudible).

Justice Potter Stewart: Presumably, excuse me.

Chief Justice Warren E. Burger: Suppose the police department came to the conclusion that there were great many unlicensed drivers, driving unsafe cars and so they have decided to check every 50th car that a policeman could see during his hours when he wasn't otherwise engaged.

Would you think that would be alright?

Mr. Frank F. Flegal: I think that gets to be a closer case to reasonable, Your honor, because now you have had a responsible determination by the police chief or the traffic chief whoever he is, you have given a police officer on the corner a basis to do it.

So he is not doing it because he thinks rental cars are overdue, because there might be narcotics and you have told them how to do it.

Chief Justice Warren E. Burger: But you think a random check is not permitted?

Mr. Frank F. Flegal: Not random -- where the basis for the random selection is left to the individual judgment of the officer that's the narrow point we make on this case.

We have nothing to argue here about what would happen if the police chief said every 50th car or today is yellow cars, or something of that nature, that's the next case but our case is leaving it to the unfettered judgment of the officer on the corner and we think and we think this record shows, that is simply runs too high of a risk.

Chief Justice Warren E. Burger: What if these – what if the department said that check all rental cars because we -- let us assume they had concluded that rental agencies were being very relax about requiring people to produce a drivers license and so they order is to check all rental cars.

Mr. Frank F. Flegal: for driver’s licenses or somewhat?

Chief Justice Warren E. Burger: For everything.

Mr. Frank F. Flegal: Yes, alright that becomes a different case, again, they have got a basis, they have given the officer some standards and perhaps you'd have a different case, I think it's important here to have one other factor and that is that in this case, the only safety matter really is the driver's license.

It was not even set forth as the officer is a basis for the stop, that document was produced at the outset of the stop, returned and appellant was not free to go at that point in time.

In other words, this officer on this record is using his power to make traffic checks to see whether or not you can prove a rental car is overdue and of course, it's the officers also conceded they have a list of overdue in stolen cars and this car was not on that list.

Chief Justice Warren E. Burger: I suppose your position would have to be the same on the search and seizure, if upon stopping the car and trying -- coming closed to it.

They saw a small child bound in gag in the back of the car, they couldn't see is the child and release it, could they?

Mr. Frank F. Flegal: Of course, our proposition in this case, Your Honor, is what they initially did.

We make no contention that if they had a right to stop appellant under the circumstances shown on this record that what they did thereafter made it unreasonable, our contention is they could not under the circumstances of this case stop him at the outset.

Chief Justice Warren E. Burger: Well, how is the gun that they found in the car any different from anything else that might kind of find in the car?

Mr. Frank F. Flegal: I am sorry, perhaps I didn't understand Your Honor's question.

Chief Justice Warren E. Burger: I said that will --

Mr. Frank F. Flegal: Abounding a traffic.

Chief Justice Warren E. Burger: He ran his flashlight, if that's what it was in the backseat, he found that there was a person, a body, and let's say, a body of a dead person all tied up?

Mr. Frank F. Flegal: Right.

Chief Justice Warren E. Burger: On the way to just Big Bear so such thing now.

Do anything about that?

Mr. Frank F. Flegal: Not doing something about, Your Honor, the Fourth Amendment doesn't say they can't do anything about it.

It says that if you infringe the defendant's Fourth Amendment right in getting to the position and stopping the car, then you can introduce that piece of evidence.

It doesn’t mean of course you can release the child.

Chief Justice Warren E. Burger: If they introduce that body to charge this man with --

Mr. Frank F. Flegal: My position would be the same.

My position would be the same.

The admission of the gun or the admission of the body does not make a distinction.

For this reason it is our position that the judgment below should be reversed and with the court belief I will save my remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Flegal.

Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: May it pleases the court.

As Mr. Flegal has indicated, there are three separate questions in this case and I shall discuss them in the same order in which he did.

The first is the question of this court's jurisdiction of the appeal which was taken here.

That I think divides into two parts and I would make it somewhat different answer to Mr. Stewart's question about this than Mr. Flegal did, because I think one of those parts is identical with the constitutional question presented with respect to the District of Columbia court system.

For if it should be concluded as I hope it will not, that criminal cases in the District of Columbia can be heard only by Article 3 Courts, then these tribunals are not courts for they do not meet their requirement of Article 3 particularly as the tenure.

The judges of these courts are appointed for 15 year term; they don't serve during a period of good behavior.

This court has only appellate jurisdiction in cases such as these and if the tribunal below is not validly established.

It's not a court, and this court has no jurisdiction to review its decision.

The remedy in such a case would appear to be by writ of habeas corpus in the District Court of United States for the District of Columbia.

But if the tribunal below is a court then we have left the question which is discussed in the briefs.

Congress has power to regulate the appellate jurisdiction of this court and has done so in Section 1257 of Title 28 of the United States Code.

It is paragraph 2 which provides for appeal to this court to review a decision “rendered by the highest court of the state”.

Where there is “drawn in question the validity of a statute of any state on the ground of it's being repugnant to the Constitution's treaties or laws of the United States and the decision is in favor of its validity”.

Now these words alone would of course not be sufficient to support jurisdiction here for we have neither a decision of the highest court of the state, nor do we have involved the validity of a statute of any state.

Since the court below is one established for the District of Columbia by Congress, and the statute whose validity is question was not enacted by a state, but by Congress.

The first of these matters is taken care of in the statute itself by amendment which was enacted as a part of the District of Columbia court Reorganization Act of 1970 and it is printed on page 4 of our brief at the end of our printing of Section 1257.

It added a paragraph there which provides that for the purposes of this section the term highest court of the state includes the District of Columbia Court of Appeals, so that half of the problem is resolved.

But there still remains the question whether the decision below involves a validity of a statute of any state.

Can those words be construed to apply to a statute which was passed by both houses of Congress, signed by the President and was never considered by the legislature of any state or indeed of any territory.

If Congress meant that, it could have said so.

It knew how to do that in this very act.

For it did provide in Section 172-C1 of the act adding Section 1363 to title 28 of the United States Code that laws applicable exclusively to the District of Columbia should not be considered “laws of the United States” or “Acts of Congress”.

For the purposes of that provision, Congress made no similar provision for a special modification of the plain words, plain meaning of the words statute of any state in Section 1257-2.

Reliance is placed on this court's decision in Balzac against Puerto Rico decided in 1922 in an opinion by Chief Justice Taft, but that decision is clearly distinguishable.

In the first place there was a considerable history to the statutory provision involved there.

It is too complicated to give in detail here, but it is readily apparent from reading the opinion, the interrelation of then Sections 237 and 246 of the judicial code.

The statute with respect to Puerto Rico was linked to the provision with respect to Hawaii and Congress has said that it wanted review here which was comparable to that in cases coming from the states.

On that basis a statute passed by the Legislature of Puerto Rico was held to be a statute of a state for the purpose of what is now Section 1257, taken in the light of other statutory provisions than enforce.

But here we do not have a statute passed by a territorial legislature or any other outside body.

The statute here was passed by Congress itself after extensive consideration there.

Congress has never provided for an appeal from decisions sustaining the validity of its own statutes, and there is no reason for forcing a construction on the statute here to reach that result.

If that were done, defendants in the DC courts could question the validity of every provision in the DC Criminal Code.

And the validity of statutory provision against murder or burglary for example and then when their contentions were denied by the court below, they would have a right of appeal to this court if the validity of the statute was sustained.

The position for which we contend seems to be sustain likewise by this court's recent decision in Fornaris against Ridge Tool Company in 400 US at -- it begins on page 41 and the jurisdictional question is decided in a long footnote on page 42.

There are something’s about that footnote which are not crystal clear to me, but among other things the court did not cite the Balzac case which would seem to had some relevance, but record does make it perfectly plain that for purposes of appeal from the United States Court of Appeals a statute of Puerto Rico is not an act -- is not a statute of the United States.

I should think therefore that the Fornaris case together with the language of the statute itself should lead to the conclusion that this court has no jurisdiction of the appeal.

If there is a court below which can be reviewed here, and I think there is, then the papers should be considered by the court as a petition for certiorari.

And I will turn next to the second and in some way the major question involves here, although all are important.

The question is the constitutional validity of the District of Columbia and Court Reorganization Act.

In approaching this question as other questions, the Constitution should, of course, not be thought of as a mathematical equation or as some kind of computer program.

As it has been said in largest part, the constitution is not a charter liberties but a blueprint for a federal system of government.

And the District of Colombia is in someway is the keystone of the federal system.

Marvelous says it was the work of the founding fathers in Philadelphia in 1787.

There were something that they did not fully foresee or spell out in detail.

And it has been this court's task to work these problems out.

This particular area of the interplay of Article III and Article-I has a sort of academic flavor to it.

And it may be an understatement to say that it has not always received wholly consistent treatment from this court.

Decisions have been made by divided courts.

Sometimes without a majority and statements can be found in the opinions to support almost any position.

I have myself been burned once in this area.

In 1929, this court decide Ex Parte Bakelite Corporation in 279U.S., a unanimous decision with the opinion written by Mr. Justice VAN DEVANTER who was in acknowledge authority on constitutional procedure.

And I would have to differ with Mr. Flegal when he said that there wasn’t even dictum which said there could be article-I courts in the District of Colombia because that opinion discuss the question in extend so and concluded that the courts of the district Colombia where article-I courts.

Now it’s true that the issue in the case was the status of the then court of costumes appeals but and so therefore there is a dictum not a decision but it was clear sort of considered dictum.

These court where there known as the Supreme Court of the District of Colombia and the United States Court of Appeals for the District of Colombia.

The case also considered the court of claims and for clear and cogent regions based long outstanding president the court found all of these tribunals where validly established under article-I of the constitution.

It was only 4 years later that the case of O'Donoghue and of Williams came before this court.

I was then a junior in the department of justice and was one of those who wrote the brief for the United States in these cases.

The question was whether the judges of these courts were protected by the provision in article III which says that the salaries of the judges can not be reduced during their terminals.

Under the circumstances we did not brief the question extensively but relied on the comprehensive treatment in the Bakelite case.

As things worked out, this court's Bakelite decision proved to be a slander read as far is the District of Colombia was concerned.

For Judge O'Donoghue who was held to be entitled to his salary.

Judge Williams was not so fortunate but he was indicated more than 30 years later with the aid of an intervening act of Congress and establishing both the court of claims and the court of-- appeals as article III courts.

The Sams have been shifting in this area but I do no think that they have shifted enough or that they should be shifted enough to invalidate the District of Colombia court reorganization Act.

The approach in this field it seems to me it should be that suggested by Mr. Justice Harlan, in an opinion he wrote, in an analogous case.

The case was read in Culver involving the validity of a trial by court martial of a woman who had murdered her air force husband at an air base in England.

His words which I do not cite as authority but only for their indication of an approach to this case we are directly applicable to trials overseas as applied to this case they would read.

In other words what Ross and the Insular case is hold is that the particular local setting.

The practical necessities and the possible alternatives are relevant to a question of judgment on question such as these.

And he continued.

I think we have above thought is crucial in approaching the case is before us.

Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not apply.

But for me the question is which guarantees of the constitution should apply in view of the particular circumstances, the practical necessities and the possible alternatives which Congress had before it.

The question is one of judgment not of compulsion.

In considering this question of judgment, we note that there is surely no constitutional requirement.

They are all federal cases; all federal criminal prosecutions must be heard by article III courts.

The constitution establishes no inferior federal courts at all but leaves that entirely to Congress.

In Australia, for example there are no federal courts.

All commonwealth criminal prosecutions are conducted in the State Courts.

We might well have had such a system here.

Expect for a period of one year, Congress provided no Federal Courts with federal question jurisdiction until 1875.

Even, today many federal question cases can not be heard in article III courts if they do not meet the jurisdictional amount established by Congress.

That means that these cases must be heard by State Courts almost none of which meet the article III test as to tenure and non-reduction of salary.

From the very earliest days of the republic, Congress provided for the trial of many criminal cases in state courts.

These are listed and cited in the two articles by trials-I which appear on page 29 of our brief and I would like to make a correction here near the bottom of page 29 as cited the Article of Charles Warren in 37 Harvard Law Review, it says page 49 and then on the next line 54, 55.

When I came to look at page 54 and 55, I couldn’t find anything about this and the correct reference should be 70-71.

As recently as Testa against Katt decided shortly after world war II, the court held the states must entertain suites are rising under a federal statue of the Price Control Act.

As long ago as 1828, Chief Justice Marshall recognized the necessity of legislative courts in American Insurance Company against Canter.

That case involves the validity of a judgment rendered by a territorial court in Florida.

The judges of which they are referred to in the opinion as a notary in five jurors but apparently the notary was appointed for 4 years.

The great Chief Justice held that the judgment was valid, saying that the Florida court could not receive article III judicial power.

But that it was legislative court validly established by Congress under its power in Article-I and then Article IV Section III to make laws for the property and territory of the United States.

It was a necessary basis for this decision that the requirements of the article III are not applicable to such courts.

And the intervening years there have been many examples of such courts.

When the territory of Orleans was established in 1804, its judges were given 4 years terms.

And this was generally the case during the whole process of developing the western territories of the United States.

This it true today of the common wealth courts in Porto Rico and of the local courts in Guam and the Virgin Islands.

In American Samoa and trust territory of the Pacific there are today judges for whom the statue simply says that they are designated by the president and he can and he recently has simply changed the designation and put in an another person as the judge in American Samoa.

This Court has many times entertained appeals from these outlined courts without any question as to their valid establishment.

Reynolds against the United States in 98 U.S. was on error to the Supreme Court of the territory of Utah, and the cruel and unusual punishment case, Weems against the United States in 217 U.S., was on a writ of error to the Supreme Court of the Philippine Islands not an Article 3 court.

Justice William J. Brennan: The case in last five or six years ago from the Canal Zone involving destruction of property down there?

Mr. Griswold: Yes, Mr. Justice but the case was here on review of a judgment of the Court of Claims.

Justice William J. Brennan: Now what?

Mr. Griswold: The question arose in the Canal Zone but it was a -- if we were thinking the same case --

Justice William J. Brennan: I think we are.

Mr. Griswold: It was a suit in the Court of Claims to recover from the United States on the ground that the United States had seized the building as part of the defensive zone.

Justice William J. Brennan: And he was doing this sorting down there.

Mr. Griswold: I have looked for cases from the Canal Zone that got to this Court, there are many which have come to the Fifth Circuit Court of Appeals, and there are a good many where petition for certiorari have been filed and denied without not on jurisdictional ground, but I couldn't find one which had been entertained on the merits from the Canal Zone.

Justice William J. Brennan: How are the judges in the Canal Zone?

What is their tenure?

What are the --

Mr. Griswold: All I can tell you is that is not life tenure.

Justice William J. Brennan: They are usually from Kentucky.

Mr. Griswold: Whether it's four years or ten years.

We will now decide the territorial courts; there were for many years councilor courts, held to be validly established in Re Ross in the 140 U.S.

Now very likely the Ross case would not be followed now, because there weren't really judges there, just councilor officers and they acted as prosecutor, judge, and jury, at least foreman.

The objection during Re Ross is essentially one of due process though and not of Article III and this was taken care of the 1906, when there was established, the United States Court for China, with power to review councilor decisions and to handle all of these cases for all of China.

The judge of this court and I can tell you this, Mr. Justice, the judge of this court was appointed for 10 years, and he could be removed by the President for cause, the statute said.

For many years, the judge was a man named Lubinger (ph) and I used to see him from time to time in Washington.

Apparently, he wasn't too busy in China, he did a good deal of legal writing including some about the United States Court for China.

I have not been able to find in any case from that court came to this Court for review, but there is at least one reported review of a criminal case in the United States Court of Appeals for the Ninth Circuit, and this is Biddle against the United States in 156 Federal not F 2nd, 156 Federal.

It was a prosecution for taking money by false pretences.

The defendant was convicted and sentenced to a year in the jail in Shanghai, and on appeal, this was reversed not because of any defect in the court, but because the apparent court concluded that the facts alleged in the charge did not constitute false pretences.

Now these instances are enough to show that federal questions including criminal charges need not be inevitably heard only by courts which are established with Article III guarantees.

State courts do not meet that test.

There were United States criminal prosecutions in State Courts in the very early days of the republic.

Territorial Courts do not meet that test; Councilor Courts don't meet the test.

I might even add that regularly established United States courts do not meet that test.

When a judge sits under a recess appointment then I am unaware of any decision, which says that a judgment rendered in such cases invalid because the Article III guarantees have not been met.

Now it can be said well there is a special constitutional provision about recess appointment, but so as there are special constitutional provision with respect to the territories of the United States and with respect to the District of Columbia.

Justice Byron R. White: Does your position require the overhauling of O'Donoghue or not?

Mr. Griswold: No, not at all.

Justice Byron R. White: Because?

Mr. Griswold: Because we have today the United States District Court and the United States Court of Appeals, in the District of Columbia circuit, which not only are undoubtedly, but as I will show a little later are by expressed statement of Congress Article III courts.

Justice Harry A. Blackmun: But as you say that -- you say these are just different courts and judges that were involved in O'Donoghue?

Mr. Griswold: These judges here of the Superior Court are of a different court and of a different quality of judges than those involved in O'Donoghue.

The O'Donoghue, the district courts of the United States for the District of Columbia, the judges performed essentially the same function that the District Court judges do throughout the country.

Justice Harry A. Blackmun: And you think that these particular court and judges involved here with a pass muster under O'Donoghue?

Even they had been before a court in O'Donoghue?

Mr. Griswold: I feel fairly sure that Mr. Justice although it's a long time ago, and it's a hard feel to be sure of anything that at the time of O'Donoghue was decided, there was either the municipal court at the District of Columbia or the Court of General Sessions.

I don't know when the transition was made that, which had extensive jurisdiction including criminal jurisdiction.

Justice Harry A. Blackmun: Well I think minor cases here?

Mr. Griswold: I think limited to imprisonment for one year, but imprisonment for one year is a number of this Court's decision has hold is taken quite seriously and there was no intimation that those courts were Article III courts were anything but Article I courts.

Justice Harry A. Blackmun: I question doesn’t go so far as Mr. Justice White’s, does your position required, so you think at least to some withdrawal from some of the language you note down in the brief?

Mr. Griswold: No Mr. Justice, I do not think so at all.

I don't think that O'Donoghue was feeling A with inferior courts in the United States and nor with courts which were given solely local jurisdiction.

Now, it is said by Mr. Frankel that this case is different from all the ones I mentioned.

It involves a district within the confines of the United States, now embracing an area which was once within the state of Maryland and subject to all the constitutional guarantees.

Of course there was no guarantee in Maryland that the Judges of the state courts having jurisdiction over the general run of crimes, would have guarantees like those provided by Article III, and except for four states today, are state judges who handle all the ordinary criminal and civil business in the country do not have such guarantees, but the district is in the United States, not outside of it, and therefore it is said the Article III guarantees must apply.

I find it hard to say, why there is any basis for a therefore there, because it's preferably plain if the constitution is, is and always has been applicable to the incorporated territories.

So decided by this Court, and that any provisions of the constitution are applicable to the unincorporated territories as was involved in Weems against the United States.

The insurer in the American insurance case was an American corporation and it lost its (Inaudible) and Reynolds was an American citizen and he was convicted of bigamy by a court which did not have Article III guarantees and that conviction was affirmed by this Court.

With respect to the --

Chief Justice Warren E. Burger: In that case, was bigamy a felony, I assume it was?

Mr. Griswold: Yes, Mr. Chief Justice.

With respect to the District of Columbia, it was for many years thought and generally understood, and I say that without any hesitation, it was for many years thought and generally understood, I think right down to the day O'Donoghue case was decided, that all of the courts here were established under Article I.

It was on that basis that they were given various administrative powers.

It was felt going back to the very earliest decisions of this court that Article III courts could not be assigned non-judicial functions and it was on that basis that it was felt that all of the District of Columbia court must be Article I courts because they pointed members with the school board may have reviewed decisions of the patent office which did not result in final judgments and they did various things which was then understood that Article III judges could not do.

Certainly, this court understood that they were all Article I courts when it decided the Bakelite case in 1929.

Now the Bakelite case is perhaps somewhat under plate here, it's fairly far back in the stream of history on this thing, but the Bakelite case represented an understanding which I think was general over a period of 50 or 75 years.

It was only under the pressure of a salary reduction question which conceivably might have affected the result that this court saw a new light in 1933, and that light was not bright enough then to illuminate the court of claims.

Moreover, from the beginning there have always been Article I courts and judges in the district.

Justices of the peace, police court, municipal court and more recently the court of general session, courts with limited jurisdiction to be sure, but surely exercising judicial power including substantial jurisdiction in criminal cases and if the judicial power of the United States can only be given to Article III courts, those courts and all the acts under them were surely invalid.

It is said that the district is different from the territories because they were transitory while, the district is permanent.

It's not clear why this makes a difference under Article III, Article III doesn't say anything about transitory or permanent.

But as to the transitory nature of the territories, we have had Puerto Rico and Guam and American Samoa now for 75 years and the Virgin Islands now for more than 55 years.

It is said that they are distant, but it takes only a couple of hours to get from here to Washington -- get from Washington to Puerto Rico and the Virgin Islands and there is instant communication with all of these places.

The people there are citizens of United States, no less and no mores then those of the District of Columbia.

Moreover, the government of the district is not changeless.

There is a great deal of current talk about home rule and changes in Congress may mean that this is more likely than it once was.

There is also a talk about statehood.

There would be a considerable problem in achieving changes such as these, if it should be concluded that they should be brought above, if more than 50 judges on the two court's below in this case had to be provided for life and it should not be overlooked that this statute was enacted by the Congress as a result of a clear crises in the District Court of United States for the District of Columbia which was simply overwhelmed by the volume of its criminal business.

Practically all of the judges were sitting on criminal cases all of the time and the ordinary work of the District Courts could not be carried forward and the congress provided this means greatly to expand the number of judges in the District of Columbia assigned to deal with local crimes and civil matters of the same sort that are dealt with by state courts in the states.

It would be a bit bizarre if the District of Columbia became a state to say that the 50 judges of these two courts below must be given life tenure if the state court judges established by the state under statehood trying the same kind of cases would not have to have Article III guarantees.

The congress expressly grants the constitution, expressly grants to Congress in Article I, clause 17, power to exercise exclusive jurisdiction in all cases whatsoever and really what could be more comprehensive, exclusive jurisdiction in all cases whatsoever over the district that is accepted as a seat of government of United States.

This court has said that this is a plenary part, there is no doubt that the district is different from other parts of the country, both legally and practically, until recently changed by constitutional amendment residence of the district did not have that most elemental right in the democracy, the right to vote.

They still have no representation in the senate and no voting representation in the house, though these bodies pass the laws that govern the district and levy the taxes that are applicable here.

Congress has, always had special powers here and has always exercised them.

In this case, it moved expressly under Article I.

The very first section of the District of Columbia Court Reorganization Act, Section 11-101 and this unfortunately is not printed in our brief, I think it should have been and I want to bring it particularly to the court's attention.

The very first section provides as follow:

Rebuttal of Unk

Unk: Well may I have that number again?

Rebuttal of Griswold

Mr. Griswold: Section 11-101.

Rebuttal of Unk

Unk: Thank you.

Rebuttal of Griswold

Mr. Griswold: Of the DC court, that would be of the court Reorganization Act in the DC court.

It provides that the courts of the Districts of Columbia are as follows, established under Article III.

1. The Supreme Court of the United States.

2. The United States Court of Appeals for the District of Columbia Circuit.

3. The District Court of the United States and then continuing quoting the statute.

Established under Article I.

1. The District of Columbia Court of Appeals.

2. The Superior Court of the District of Columbia.

Thus Congress made it explicit that it knew it was acting under Article I that it intended to act under Article I and that Article I was the basis for the authority which it was seeking to exercise in establishing the two courts below in this case.

Chief Justice Warren E. Burger: We'll resume there after lunch, Mr. Solicitor General.

Mr. Solicitor General, you may proceed.

Mr. Griswold: Before resuming the main threat of my argument, I would like to refer to a memorandum which Mr. Flegal has quite property filed with the court, calling attention to a new edition of the Hart and Wechsler's casebook about federal courts in particularly to a paragraph of a note which appears on page 397 of that note.

I would like simply to suggest to the court that they read the entire note and not just that paragraph on page 397.

Among other things Mr. Bator who is the author of this part says in paragraph 1, notice that the line of argument made above does not in itself asserts that congress has unlimited power to assign federal judicial business to federal legislative courts.

It simply asserts that Article III does not rigidly preclude congress from exercising some flexibility in allocating that judicial business and that Congress may make a particular allocation to a non-article III tribunal, if functional considerations of serving a valid legislative purpose justified and if there is adequate provision for judicial review or here there is provision for judicial review in all cases to this court which is of course in Article III court and then I would like to say that nothing in our position requires the court to overrule or to disapprove anything decided in the O'Donoghue case.

The courts there were held to be both Article III and Article I courts but there was nothing there which held that congress could not create courts under article I to deal with local matters only.

Justice William H. Rehnquist: This may be rather subjective inquiry Mr. Solicitor General.

But do you think the majority of the O'Donoghue Court would have decided this case the way the District of Columbia Court of Appeals did?

Mr. Griswold: Mr. Justice if I may put it this way, I think the majority of the court that decided the O'Donoghue case, if it were here in 1973 would decide this case the way that I suggest.

In 1933 when they were deciding it they didn't have the history that had developed.

The courts established the declaration of Congress that it was creating these courts under Article I.

If all of those provisions had been before the Court in 1933 then my answer would be yes, that they would have accepted the – let me -- I mentioned some of the practical problems before Congress and legislating here the difficulty of giving life tenure to 50-60 judges which were needed but there is also another practical problem and that is fazing in the judges under the old system into the new.

The judges of the Court of General Sessions have not been appointed as Article III judges and a means of making a transition was to establish Article I courts.

Then we do not contend that Congress could create courts generally under Article I to sit all over the country.

Though I would refer to the United States Tax Court which again Congress has validly created under Article I without life tenure and it does sit all over the country but it has no criminal jurisdiction.

Congress could not displace the Article III courts in the states by establishing Article I courts with general jurisdiction or by a series of Article I courts under the commerce power and the tax power and other powers.

Our position this simply that Congress has broader powers over governmental organization in the district than it has in the states.

Now let return to the final subject involved in the case, the question of the seizure.

This is one of considerable importance to the government and I hope that I have not left it buried under a mass of technicalities in presenting the other questions involved.

The basic question is whether a policeman may make a selective stop of a motorist for the purpose of checking his driver's license and registration certificates.

The District of Columbia law requires an operator to have these papers in his possession or in the automobile and that must mean something.

It's not just ceremony that he has to have the papers in his position there to be there so that they can be shown on proper occasion unless they can be checked by a police officer.

There is no way to tell whether motor vehicles which are surely dangerous instrumentalities are being validly operated.

Here the check was no whim.

The police officer could tell from the license plate that the car was a rental car.

He knew that many rental cars were held over time which is unlawful or re-stolen.

In this case the whole rental agreement did indeed indicate that the car was overdue, though this was straightened out when inquiry was made.

There is no allegation that the police officer acted improperly, that is in a violent or a vicious manner.

Rebuttal of Unk

Unk: Mr. Solicitor General, Can I just go back a moment, could the judgments of the tax court be reviewed here?

Rebuttal of Griswold

Mr. Griswold: Directly?

Rebuttal of Unk

Unk: Directly.

Rebuttal of Griswold

Mr. Griswold: They could be since 1970 when it was established as a court.

Rebuttal of Unk

Unk: Well it has but before that when it was in Article I court --

Rebuttal of Griswold

Mr. Griswold: Whether it's is Article I court now and they can be reviewed here.

Just as territorial judgments can be reviewed --

Rebuttal of Unk

Unk: Because even though it is not an exercise of Article III judicial power they used as their exercise--

Rebuttal of Griswold

Mr. Griswold: The Court has always held that it is an exercise to judicial power and there is appellate jurisdiction to review the decisions of the territorial courts established under Article I.

Rebuttal of Unk

Unk: So we have a jurisdiction here than over District Of Columbia Court's judgment whether those courts were exercising judicial power or not?

Rebuttal of Griswold

Mr. Griswold: No.

Only if it is exercising a judicial power but regardless of whether it's under Article III or Article I.

Rebuttal of Unk

Unk: Alright.

Alright, whether or not we are exercising in Article III judicial?

Rebuttal of Griswold

Mr. Griswold: That is correct.

Prior to 1971 Mr. Justice, the Tax Court, in first place it was the Board of Tax Appeal, then it was established as the Tax court but because of a curious history, the statute expressly provided that it is an independent agency and the executive branch for the government and that lasted till 1970.

And during that time it was quite clear that this court could not review a decision of the Tax Court.

Indeed there is a case back 30 years ago involving a certificate from a Court of Appeals with respect to a question from the tax court and this is – I may say this court was always very careful.

Never to remand their decision to the tax court, it always remanded it to the Court of Appeals for remand to the tax court.

But here, there was nothing discriminatory and thus stop many citizens would welcome that has evidence that the police where doing their duty.

Incidentally, the statute of the District of Columbia does not say that the policeman may stop the car, but it does say expressly that any individual to whom has been issued a permit to operate a motor vehicle shall add such permit in his immediate possession at all times, when operating a motor vehicle in the District and shall exhibit such permit to any police officer when demand is made therefore.

This case we think is like the Biswell case, where people realizes to deal in firearms and this Court held that they were subject to inspect it, indeed said that it is to be effective in service a credible deterrent unannounced even frequent inspections are essential.

If a motor is chooses to drive pursuant to a license for which he has applied, he does so with a knowledge that he maybe required at any time to establish that he is doing so in unconformity with the law.

Under the circumstances such checks post at most only limited threats to the motorist privacy, and no threat which is not justified by his acceptance of the license and the operation under it.

I note that persons who wish to enter this court room they have to submit themselves to an inspection which includes the opening of parcels, and the opening of ladies handbag, I would not suppose there was any question about that and I see no basis for a question in the light of the District of Columbia statute with respect to the request for licenses in this case.

If the stock was proper, the protective action of Officer Morris had and looking to see if there are any weapons available was clearly proper under the general rationale of Terry against Ohio and the search should be sustained.

If the court reaches the merits of the case, the judgment of the District of Columbia Court of Appeals should be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Flegal, we'll allow you six minutes enlarging your time a little bit.

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: I appreciate that Your Honor.

It seems to me that the one central point that is now involved in the case is the positions of the parties have crystallized, is whether or not the citizens of the District of Columbia stand on a different footing insofar as Article 3 Safeguards and Protections are concerned from citizens in the several states.

We think the answer to that dis-positive question is no.

We rely first upon the fact that the constitution required the District of Columbia to be carved out of the several states.

Justice Byron R. White: The citizens do stand on a different basis with respect to the powers of Congress?

Mr. Frank F. Flegal: Oh, clearly Your Honor.

The legislature which enacts the laws for the citizens of the District of Columbia and of course those who come into the District of Columbia is Congress or whatever local legislature it is.

Justice Byron R. White: And it's a question how far that difference can stand?

Mr. Frank F. Flegal: That is a legislative difference and we suggest it has no extension to Article 3 Safeguards and Protections.

As I was indicating the District of Columbia had to be carved out of the several states.

That was a factor which this Court found dis-positive in the O'Donoghue opinion upon which we place heavy reliance and I would respectfully disagree with the Solicitor General that I think if the appellant does not prevail in this case at least some of the language, some of the Article III theory of the rights and the benefits set forth in the O'Donoghue opinion would have to be rejected or retreated from.

Now --

Chief Justice Warren E. Burger: But then as you read Seventeenth Clause of Section 8, Article I, the legislative power of Congress over the district is narrower, is less broad than the legislative power of the state in creating its own ordinance of government.

Mr. Frank F. Flegal: Precisely, Your Honor.

Chief Justice Warren E. Burger: And why?

Mr. Frank F. Flegal: And the difference is the difference between the Fourteenth Amendment which is the State's Federal Constitution restriction on a state legislature and the Bill of Rights and original constitution on Congress.

Justice Byron R. White: Well, how about the extent of it?

You say it's also narrower than the power over territory?

Mr. Frank F. Flegal: Yes indeed so sir, indeed so and I say that because this Court has so held.

Many rights which citizens of a state and which are not, which don't fetter a state legislature's judgment, the Seventh Amendment right to a trial by jury in a civil case, the Sixth Amendment and Article III right to a jury trial in the criminal case and the Fifth Amendment grand jury right are applicable to local offenses in the District of Columbia.

To that extent we submit --

Justice Byron R. White: And in the territory --

Chief Justice Warren E. Burger: And in the territory --

Mr. Frank F. Flegal: And in the territories, Your Honor, depending upon whether or not the territory is been incorporated or not and whether it's being fundamental or not, those are --

Justice Byron R. White: But there is no in respect to territory that you need an Article III Court?

Mr. Frank F. Flegal: It’s been assumed Your Honor, I know of no case in this Court which is ever squarely so held --

Justice Byron R. White: Well, assume it had, it still wouldn't make any difference to you?

Mr. Frank F. Flegal: It would make no difference to me, Your Honor.

We would the submit the citizens before the Federal court in the District of Columbia charged with a felony is entitled to precisely the same.

Constitutional rights and safeguards as a citizen charged for a federal felony before a federal tribunal in one of several states and we think the framers did accomplish something by the good behavior clause of the constitution something benefited to the litigants.

Chief Justice Warren E. Burger: Then you are giving residents of the District of Columbia something more than residents of Maryland?

Mr. Frank F. Flegal: I am giving the residents of the District of Columbia precisely the same as I would give the resident of Maryland and that is the right --

Chief Justice Warren E. Burger: Let me put it to you this way.

There are felonies in the state of Maryland, they are in the State of Virginia, as to which the residents of those states or any person apprehended there, and charged would not give an Articles III Court isn't that true?

Mr. Frank F. Flegal: Correct.

Chief Justice Warren E. Burger: So that in that sense, you are suggesting that the residents of District of Columbia get something that residents of no other state had except --

Mr. Frank F. Flegal: Weren't tried before the state tribunals, and they get a precisely the same --

Chief Justice Warren E. Burger: [Voice Overlap] before the state tribunals, except to the extent that is comparable 10 year in Massachusetts, and several other states.

Mr. Frank F. Flegal: Several other states, but that is a question on which we -- a fact on which we place no reliance for our proposition.

What we are saying is the citizen in the District of Columbia gets rights which the State of Court would not have to afford him sitting in Maryland, the grand jury indictment the jury and we submit the good behavior judge.

Justice Byron R. White: Or even if the State of Court was trying for a federal --

Mr. Frank F. Flegal: That's the arguendo assumption Your Honor, if the governments we think that goes too far and if there are serious problems if Congress ever passed the hypothetical legislation that the government state Court argument rest upon, this Court is confronted some of those problems in the Seventh Amendment context, with the State Courts trying Federal Civil Actions and in some cases the Federal Employer liability acts in so forth, implied as part of the remedy.

Some part of the Seventh Amendment Jury Protection, but that's not our argument.

We assume arguendo with the government that if State Courts could constitutionally try federal clients Fourteenth Amendment Protections would apply.

Our preposition is purely a limitation on exercise of the Federal Judicial power.

If Court has no further questions, we submit that the judgment of the District of Columbia Court of Appeal should be reversed either with directions to remand this case for a new trial before a constitutional Court, or in the alternative to reverse and remand for either a new trial or a judgment of acquittal, excluding the evidence which we challenge.

Thank Your Honor.

Chief Justice Warren E. Burger: Thank Mr. Flegal.

Thank you Mr. Solicitor General.

The case is submitted.

Featured:

Boykin v. Alabama - Oral Argument

Thu, 23 Aug 2012 18:16:34 +0000

Case:

Boykin v. Alabama

Media File:

642_19690304-argument.mp3

Related Transcript:

642_19690304-argument

Transcript:

Argument of E. Graham Gibbons

Chief Justice Earl Warren: Number 642, Edward Boykin, petitioner, versus Alabama.

Mr. Gibbons.

Mr. E. Graham Gibbons: Mr. Chief Justice, may it please the Court.

I represent Edward Boykin Jr. who is the only man in America that awaits execution for the crime of common law robbery.

And if he is permitted to die will be the sixth man to be executed by the State of Alabama in almost 40 years for that crime.

This case is before this Court on certiorari to the Supreme Court of Alabama.

That court by a four to three decision affirmed five death sentences.

Edward Boykin was brought to trial on five separate indictments for robbery.

And a plea of guilty was entered and on that plea he was sentenced to death five times.

Now, this case as I see it raises three great constitutional issues.

The first one is that it violates the Constitution, the Due Process Clause for a conviction to be based upon a plea of guilty where in the record of trial there is no affirmative showing that that plea was voluntarily and understandingly given.

Secondly, the imposition of the death penalty for the common law robbery violates the provision of the cruel and unusual Eighth Amendment clause.

And thirdly, a statute which allows a jury unfettered discretion in a capital case violates the petitioner's right to due process.

Justice Abe Fortas: Mr. Gibbons --

Mr. E. Graham Gibbons: Now --

Justice Abe Fortas: -- may I ask you whether that last point was raised and decided below?

I've looked for it and I haven't been able to find it.

Mr. E. Graham Gibbons: Yes, it was --

Justice Abe Fortas: If it is --

Mr. E. Graham Gibbons: -- raised below.

Justice Abe Fortas: Would you show me where?

Would you tell me where it is because I have looked for it and haven't found it?

Mr. E. Graham Gibbons: Well, it was raised in my brief, I do not know whether the Supreme Court of Alabama considered it or not.

Their decision indicates that they did not.

But --

Justice Abe Fortas: There's nothing in there, the decision on it.

There's nothing in the papers --

Mr. E. Graham Gibbons: No.

No, sir.

That there is --

Justice Abe Fortas: -- we have before us.

Mr. E. Graham Gibbons: There is no treatment in the Supreme Court of Alabama decision as to that point.

Justice Abe Fortas: Alright.

Mr. E. Graham Gibbons: Now --

Justice Abe Fortas: I want to be very clear on this Mr. Gibbons because it's a --

Mr. E. Graham Gibbons: Yes, sir.

Justice Abe Fortas: -- jurisdictional matter.

Mr. E. Graham Gibbons: Well --

Justice Abe Fortas: There is nothing in the papers before us that shows that the point with respect to them -- your argument with respect to the need for standards to guide the jury in imposing a punishment.

There's nothing in the papers before us that shows that that was raised and decided below, am I right or wrong about that?

Mr. E. Graham Gibbons: I would -- the only thing I can say is that it was raised in the court below.

It --

Justice Byron R. White: Well, if your brief here printed in the Supreme Court of Alabama --

Mr. E. Graham Gibbons: I don't know.

Justice Byron R. White: I'm not sure you say it's correct.

Mr. E. Graham Gibbons: I don't know about whether it is or not.

Justice John M. Harlan: But it was raised in the second cases to follow you.

Mr. E. Graham Gibbons: Well, what I was just about to say was that in view of the oral argument on that specific point that's going to be presented in Maxwell against Bishop that in the time limitation that I have, I'm going to address myself to the first two issues that I --

Justice Byron R. White: Oh, is the first issue breaking the law?

You don't see that here, do you?

Mr. E. Graham Gibbons: Well, it was raised below in this sense that under the automatic appeal statute in Alabama the Supreme Court of Alabama must look at the entire record.

Justice Byron R. White: Oh, its --

Mr. E. Graham Gibbons: And certainly it was raised --

Justice Byron R. White: -- they must have know any clearer.

Mr. E. Graham Gibbons: Yes, sir.

Justice Byron R. White: That's that the statute?

Mr. E. Graham Gibbons: Yes, sir.

Justice William J. Brennan: So you would say that any clear -- any thing that we might reverse, they should've noticed?

Mr. E. Graham Gibbons: Well, they certainly noted that because three justices in Alabama wanted to reverse on that first issue which I'm raising -- in which I intend to argue about now.

Justice William J. Brennan: Well again, did you argue that in your brief before the Supreme Court of Alabama?

Mr. E. Graham Gibbons: No, sir.

No, sir.

I did not submit that issue in my brief below.

Justice Byron R. White: That was raised by the dissenting --

Mr. E. Graham Gibbons: That was raised by the dissenting opinion.

Justice Byron R. White: Sua sponte?

Mr. E. Graham Gibbons: Yes, sir.

Justice John M. Harlan: Was there a motion to withdraw the plea here?

Mr. E. Graham Gibbons: No, sir.

Justice John M. Harlan: In this case?

Mr. E. Graham Gibbons: No, sir.

Now, if I may --

Justice John M. Harlan: Represented by a counsel?

Mr. E. Graham Gibbons: He had a court appointed attorney.

I might explain to the Court here that I'm in the same position you all are because I entered this case at the trial -- at the appellate level.

I was -- I was not even in the case until after the sentence was given and everything.

Now, addressing myself, if I may to this point that the Due Process Clause requires that a trial record show affirmatively that the plea of guilty was voluntarily and understandingly made, I think there are three points of reasoning that inevitably draw us to that conclusion.

The first is and I don't think it's arguable that a plea of guilty must be voluntarily and understandingly made.

That's because as we -- I think we all realize that a plea of guilty is an admission of guilt.

It's a con -- judicial confession in effect.

And certainly the waiver of such a fundamental right to contest guilt to give the prosecution the whole vote so to speak.

The waiver of that right is so fundamental that I don't think it's arguable.

That it should be voluntarily and understandingly given.

Now secondly, that in order to be meaningful, it must be affirmative.

And this affirmative procedural step must appear on the record because -- what I'm saying here is this, that if you look at this record right here, you do not know and I do not know whether Edward Boykin entered his plea of guilty voluntarily and understandingly.

And yet he is going to have to die because of the barrenness of this record.

And it's a simple thing.

It -- by analogy it's the same reasoning that this Court used in the Miranda decision.

There, there was a question of a waiver.

There was a -- and this Court said that if a -- in a trial court, if you're going to introduce an out of court confession then you -- then the record must affirmatively show that that confession was obtained voluntarily and understandingly.

The -- the same thing is true that we are asking here.

If you're going to rely on a plea of guilty then the record ought to show and -- we wouldn't have this trouble right here.

This question wouldn't be before the court.

It wouldn't give the trouble to the Supreme Court that it gave them if a -- as -- the same sort of litany that -- that's in the record about indigency.

If you had just a trial court determining be ensured that the fellow knew that when he plead guilty, he was subjecting himself to the maximum punishment.

Now, I'd like to comment about this --

Justice John M. Harlan: What --

Mr. E. Graham Gibbons: -- record.

Justice John M. Harlan: What effect do you think the Alabama procedure has that the -- notwithstanding the plea, there must be a prima facie case made I doubt.

Mr. E. Graham Gibbons: Well, I don't think that has too much to do with the -- the issue that I'm trying to speak about here for the reason that that common after the a plea.

Justice John M. Harlan: I know but his plea doesn't become effective, the basis for reasoning, the carrying out of the sentence out that additional requirement being fulfilled, namely it ought to be a prima facie case?

Mr. E. Graham Gibbons: Well --

Justice John M. Harlan: Isn't that the Alabama law?

Mr. E. Graham Gibbons: No, sir.

That's not the Alabama law.

The -- the Alabama law is that you put on a prima facie case as a sort of penalty trial where you determine the -- you let the jury see what kind of a case it was.

But a plea of guilty in Alabama is conviction of the offense.

Justice Byron R. White: You mean the jury can't -- cannot find the man innocent?

Mr. E. Graham Gibbons: That's right.

Justice Byron R. White: Well, its -- that's --

Mr. E. Graham Gibbons: But --

Justice Byron R. White: Isn't that your answer?

Mr. E. Graham Gibbons: Yes , sir.

Now, looking at this record, its 35 pages for which a man's going to die for and all that's in it is an -- the first page is an indictment talking about robbery not the death penalty.

It sets bail at $2,500.00.

There is a proceeding of determining indigency while the fellow is asked, do you need an attorney and he says no.

There is in this record the testimony of the witnesses, the complaining witnesses and then the first time that the death penalty is mentioned is in the almost pro forma instructions of the judge when he gives the jury two forms.

If you're going to give him imprisonment, you use this form.

If you're going to use death, you use this form.

And then at that time the jury goes out and comes back in and Edward Boykin is to die and that's all that this record shows and that's what I'm trying to say today.

Now, I just believe that the Constitution Due Process Clause requires that that this affirmative showing be made.

I'd like now to turn --

Justice Potter Stewart: Did you -- did I understand that there was no motion at anytime to withdraw the plea of guilty?

Mr. E. Graham Gibbons: There was no motion at any time.

No, sir.

Justice Potter Stewart: I'm interested in the statement of facts on page 7 of your brief.

It indicates that after this conviction and death sentence there was an automatic appeal under Alabama law --

Mr. E. Graham Gibbons: Yes, sir.

There is.

Justice Potter Stewart: But that the Alabama Court despite the conceded indigency of the petitioner did not appoint counsel on appeal and thereafter when member of this similarly union attempted to represent him, he was told that he could not because he wasn't authorized to practice?

Mr. E. Graham Gibbons: Yes, sir.

Justice Potter Stewart: And thereafter when I guess you entered the case.

It was too late as you say to raise any issue on motion for a new trial as the statutory time period had elapsed.

I'm interested in knowing just what that means.

Mr. E. Graham Gibbons: Well, the day of the sentence starts the running of the time when you can file a motion for a new trial and that's --

Justice Potter Stewart: Apparently the trial court neglect it, it actually imposed a sentence, didn't he?

Mr. E. Graham Gibbons: Well --

Justice Potter Stewart: They're to set the date?

Mr. E. Graham Gibbons: He -- he didn't set the date until the next day when the defendant was finally brought back in for proper sentencing as to form.

But the 30-day limitation run -- started running on the day of sentence which is 21st of September.

Well now, I didn't get in this case until the 27th of October when a friend of mine told me that he want -- he couldn't prosecute the appeal and would I take it and that time I got into it.

But any sort of motion for a new trial, the grounds, excessiveness of that sort of thing, that's all waived unless you raise it on a motion for a new trial.

Justice Potter Stewart: And that must be made within 30 days of the sentence?

Mr. E. Graham Gibbons: Yes, sir.

Yes, sir.

Justice Potter Stewart: And the --

Mr. E. Graham Gibbons: You see, the automatic appeal statute in Alabama came prior or was enacted prior to Gideon against Wainwright about this counsel but you have an automatic appeal but you'd -- you don't get an automatic attorney.

Justice Potter Stewart: Uhmm-mm.

Mr. E. Graham Gibbons: On that appeal, you've got to ask for it.

Justice Potter Stewart: And by the time he had a lawyer, the 30-day period had elapsed.

Mr. E. Graham Gibbons: Yes, sir.

Justice Potter Stewart: And can you tell us in a word what might have been done if the 30-day period had not elapsed?

Mr. E. Graham Gibbons: Well, a motion for a new trial and some of the grounds I'm raising now --

Justice Potter Stewart: About what, which one?

Mr. E. Graham Gibbons: But principally the excessiveness of the penalty in the light of the offense.

Nobody, nobody expected -- I can only conjecture about this record just as anybody can.

But Alabama gives the penalty for robbery about once every eight years.

Justice Potter Stewart: And still, if we can just for a moment confine ourselves, if you're willing to, to the question I asked, what could've been done within than 30-day period?

That could not have been done after the --

Mr. E. Graham Gibbons: A motion for a new trial could have been filed and heard by the trial court.

Justice Potter Stewart: Because he did have trial counsel, did he?

Mr. E. Graham Gibbons: He had court appointed counsel for the trial.

Justice Potter Stewart: Yes, yes, it was appointed by the court, that he had trial counsel.

Mr. E. Graham Gibbons: His duties under Alabama practice are over when the Senate comes in.

Justice Potter Stewart: It doesn't embrace any duties to make a motion for a new trial, does it?

Mr. E. Graham Gibbons: Well, it's the view that attorney's take.

I personally take the view that it goes all the way through parole.

If -- if he needs help, even after he gets parole, if he gets a sentence but technically or by application, the trial appointed -- court appointed attorney's duties are --

Justice Potter Stewart: Yeah -- but.

Mr. E. Graham Gibbons: Oh!

Justice Potter Stewart: -- practice down there.

Well now, I suppose after the sentence, it would've been too late then to withdraw the plea of guilty or would it not?

Mr. E. Graham Gibbons: I -- I believe it would, yes.

Justice Potter Stewart: That has to -- a motion to withdraw of plea of guilty has to be made before sentence is --

Mr. E. Graham Gibbons: If any -- before submission to the jury.

Now, in -- I'd like to address my further argument to the second point and that is the question of applying the provision of the Eighth Amendment prescription, approval and unusual against the death -- against the offense of a common law robbery.

Now, this is a direct attack upon Title 14, Section 415 of the Code of Alabama which is the penalty statute for the common offense of robbery and we all know that the common law offense of robbery is the its essential's elements are the taking of property with -- from a person with the violence or with a threat of violence.

Now, the attack on this statute is because the breadth and range of it, a simple assault with a larceny can give you the death penalty under this statute.

Now, in application of this provision of the Eighth Amendment, this Court has indicated certain standards or certain things that they look at.

One of them is that it's not a static concept.

That's its not a non-progressive thing that it moves with the times and that they've in -- even indicated -- you have even indicated in an -- a more enlightened society, it might encompass greater and greater things and I am saying to this Court today that Alabama is the only State that has this common law offense of robbery with the death penalty.

And I submit that in the light of this Court's decisions, decisions such as Weems 60 years ago when this Court knocked down a punishment where a feller -- he falsified some Government documents and he got 12 years imprisonment and loss of his civil rights.

This Court at that time 1910 said that that one of the standards is the disproportionate, disproportionality of the offense with the punished.

Now, looking directly at Alabama, Alabama -- the crime of unpremeditated murder with malice in Alabama, the maximum punishment is life imprisonment yet for larceny, and a simple assault, you can get the death penalty.

I respectfully submit that that this standard of disproportionality is applicable to Edward Boykin.

Justice Hugo L. Black: You mean robbery, don't you?

Mr. E. Graham Gibbons: Yes, sir.

Robbery, common law robbery as it is.

Justice Hugo L. Black: What's the difference between common law robbery -- what is it that the other states have that Alabama doesn't have?

Mr. E. Graham Gibbons: Well, the other states have a statutory form of robbery classifying it in aggravation such as armed robbery.

Justice Hugo L. Black: Which adds what to attacking a man, threatening with a weapon, threatening to kill him and so forth, and talking his money, what does it add to that, the other states?

Mr. E. Graham Gibbons: Well, it adds the description of aggravation.

Justice Hugo L. Black: The aggra -- I mean, what conduct, what does he have to do in addition to that?

Mr. E. Graham Gibbons: Well, in a statutorily -- in an armed robbery statute he has to be armed or he has to kill somebody or whatever classification or qualification these statutes give it.

Justice Hugo L. Black: Well all this common -- all statutory robberies as I understand it based on the fact that one meets another or find him, threatened him with a weapon, if he doesn't give him his property and takes it away from him or tries to, isn't that statutory robbery as well as common law robbery?

Mr. E. Graham Gibbons: No, sir.

In common law robbery you can have conceivably a school boy in a corridor, in a high school in Alabama can snatch a book away from another student and under the statute in Alabama he can get death.

Justice Hugo L. Black: That's conceivable.

Did you ever hear of a thing like this?

Mr. E. Graham Gibbons: No, sir.

I never have nor have I ever heard of really in terms of thinking that a feller who didn't kill anybody wouldn't get death, wouldn't sacrifice his own life for it.

Justice Hugo L. Black: You mean, you've never heard of anybody being convicted robbery without killing somebody?

Mr. E. Graham Gibbons: No, sir.

I'm saying that it is shocking to think even under the Judeo-Christian concepts that we work on that a life must be taken when no life was --

Justice Hugo L. Black: But that --

Mr. E. Graham Gibbons: -- was taken.

Justice Hugo L. Black: I don't know what's the custom now, but it certainly it was --

Mr. E. Graham Gibbons: Well --

Justice Hugo L. Black: -- 50 years ago, it was said that --

Mr. E. Graham Gibbons: Well Your Honor, I am not up here saying that robbery is not a serious crime.

It is most serious but we got to recognize that life is a fundamental thing, life is a fundamental right too.

Justice Hugo L. Black: Each life.

Mr. E. Graham Gibbons: Each life.

Yes, sir.

Justice Hugo L. Black: The victim and the person who does it.

Mr. E. Graham Gibbons: Yes, sir.

They --

Justice Hugo L. Black: They threatened victim, his life's pretty dear too, isn't it.

Mr. E. Graham Gibbons: Most dear.

Justice Potter Stewart: Mr. Gibbons, the printed appendix doesn't contain any transcript at all of how this jury was qualified the voir dire of the jury, is that available anywhere?

Is there a typewritten transcript to that in the original record?

Justice Hugo L. Black: It is not available and assuming that the practice is as it -- as I know it to be it was not transcribed.

Justice Potter Stewart: Can you -- I have in mind this -- perhaps you might guess the decision of this Court in the Witherspoon case --

Mr. E. Graham Gibbons: Witherspoon.

Yes, sir.

Justice Potter Stewart: -- Witherspoon against Illinois, you make no contention under that decision but it occurred to me that there might well be one to make.

Mr. E. Graham Gibbons: That -- that maybe so but the record here doesn't disclose, I mean I know or I can -- it's conjecture, I don't want to go outside the record --

Justice Potter Stewart: Well, what's the --

Mr. E. Graham Gibbons: -- but the practice is, to qualify them as -- have they been doing for a long time.

And that is if you've got -- I think -- I think if it appeared in the record, you would have a contravention with the Witherspoon case.

Justice Potter Stewart: Does the -- do the statutes or laws or case law of Alabama with respect to qualifying a jury in a capital case throw any light on this question?

Mr. E. Graham Gibbons: Yes, sir.

Justice Potter Stewart: What did they --?

Mr. E. Graham Gibbons: There --

Justice Potter Stewart: Scoops -- what's -- what's the purport of them?

Mr. E. Graham Gibbons: Oh, the -- they hold that it's a challenge for cause if a perspective juror has any hesitancy in giving the death penalty.

Justice Potter Stewart: It occurs to me that you representing a client under sentence of death have put a good many eggs in one basket and if you have a Witherspoon claim, who do you make it or perhaps federal habeas corpus is a more appropriate place for that and perhaps you've considered that.

Justice Abe Fortas: Mr. Gibbons, as I understand it, you are here attacking the constitutionality of the Alabama statute on its face that is to say you're saying that the statute is bad apart from its -- the facts of this particular case would cause a statute authorizes the jury to fix death sentence in the case of Robert and you point out that Alabama used the common law definition of robbery.

Under -- I don't remember saying in your brief, a reference to just how Alabama views the definition of the common law crime of robbery.

From your argument I take it that any sort of unlawful taking, they need force --

Mr. E. Graham Gibbons: A taking with violence or with the threat of violence.

Justice Abe Fortas: Alright, now are there states in which the crime of armed robbery is punishable by death.

Mr. E. Graham Gibbons: Yes, sir.

Justice Abe Fortas: And what happened here was in fact an armed robbery, there is no dispute about that is there that is to say that Boykin was carrying a gun.

Boykin did in fact use the gun in the robbery.

Boykin did in fact discharge the gun and in fact a girl in the store was wounded in the calf of her leg, am I correct?

Mr. E. Graham Gibbons: Yes, sir.

That is correct.

Justice Abe Fortas: Now, that would be armed robbery within the definition of other states, right?

Mr. E. Graham Gibbons: Yes, sir.

Justice Abe Fortas: Your point however is that it's not necessary -- is your point, that its not necessary for us to reach the constitutionality of the armed robbery death penalty statutes because you are asking us to consider this statute on its phase without reference to the facts of this particular case, is that right?

Mr. E. Graham Gibbons: That's correct sir.

A -- aside from what this Court may think of murder, say, as justifying the death penalty, the question before the Court as I see it and the issue I'm trying to make is that the death penalty for robbery is cruel and unusual, is disproportionate, it -- it comes in a time when no other state except Alabama applies and it --

Justice Abe Fortas: But here your problem however is that here you have an armed robbery and you have an armed robbery in the course of which somebody -- the -- Boykin did shoot and somebody was wounded but its not a -- just a simple unaggravated robbery.

Your attack must be and well I suppose you wouldn't be averse to attacking that as a basis for the death penalty but the other prong of your attack I take is that the statute is bad or over breadth.

Mr. E. Graham Gibbons: Is bad on its face because of the expanse and range to which it can be applied.

Mr. Chief Justice, may I reserve whatever time I have left for rebuttal.

Chief Justice Earl Warren: You may, you may Mr. --

Mr. E. Graham Gibbons: Thank you.

Chief Justice Earl Warren: Mr. Clark.

Argument of David W. Clark

Mr. David W. Clark: Mr. Chief Justice, may it please the Court.

In April and May of 1966, Mobile, Alabama experienced a series of robbery.

One Edward Boykin was arrested.

The grand jury returned five indictments against him for robbery.

I would like to point out the time element and the space of the city involved.

These five robberies took place from April the 23rd 1966.

That was the first one.

There was one on May the 3rd, one on May the 5th, one on May the 8th, one on May the 8th.

The manner of operation was that this young man went into either grocery store or drugstore service station and would exhibit a pistol and commit robbery and then when he would leave, he fired the pistol so nobody would follow him out.

There was one wounding of a little girl.

I believe, the evidence shows that he fired into the floor, the bullet ricocheted and hit this young lady in the leg.

Now, at the time of the trial the court appointed, one Evan Austill, is the court appointed attorney to represent --

Justice Hugo L. Black: What was his name?

Mr. David W. Clark: Evan Austill, A-U-S-T-I double L judge.

His father and he had practiced together.

The father has been a member of the bar for many years.

After --

Justice William J. Brennan: I gather that you don't raise the question of the -- these questions being properly presented or do you?

Mr. David W. Clark: No, sir.

I --

Justice William J. Brennan: You don't mention it on your brief?

Mr. David W. Clark: I'm not the going to but I would stand on my brief, I think it explains some of it Your Honor.

Justice Byron R. White: Do you raise -- do you speak of -- about that in your brief?

No.

It was just the jurisdictional question, it was not just a --

Mr. David W. Clark: Which particular question was that Your Honor?

Justice Byron R. White: Whether we can reach questions which were not raised and decided under your State Supreme Court?

Mr. David W. Clark: Well, I feel that under this Section, Title 15, Section 382, 1-13 wherein the Supreme Court considered all the things raised at the trial that you could do that sir.

Justice Potter Stewart: As far as it appears from what I've been able to a glean, of course we don't have the briefs of the parties before the Supreme Court before us but really nothing at all was raised at the trial.

There was simply a guilty plea and then as counsel has said, five sentences of death on one -- on this petitioner and that's all that appears plus some evidence of his -- of the conduct.

And then in the Supreme Court of Alabama all that appears that they considered of the questions raised here was whether or not the trial court failed to protect the petitioner's right to due process for -- with regard to his plea of guilty as you put it.

And that's the only thing they considered.

Mr. David W. Clark: That's right.

Justice Potter Stewart: And neither one of the other two questions so far as I can find out was raised or considered or decided in any of the courts of Alabama.

Is -- am I wrong about that?

Mr. David W. Clark: No, sir.

You are correct that it could have been considered although they did not mentioned under that Title 15, Section 382 wherein --

Justice Potter Stewart: It wasn't raised at the trial?

Mr. David W. Clark: No, sir.

Justice Potter Stewart: Either one of these two odd questions.

Mr. David W. Clark: No, sir.

Not raised at the trial.

A while ago you raised the question about the Witherspoon matter --

Justice Potter Stewart: Yes.

Mr. David W. Clark: Whether Witherspoon applies to this.

I would like to call Your Honor's attention to appendix page 10 and 11 wherein Mr. Signey Flagger of the Assistant District Attorney prosecuting the case pointed out they had 12 jurors sitting in a box, would they be alright in the defendant there said they would and his attorney, Mr. Austill said the --

Justice Thurgood Marshall: Well, Mr. Clark is there anything in the record to show that any one of those jurors have asked any question at all about anything at any time?

Mr. David W. Clark: No, sir.

This is the entire matter and I have the original record here and nothing was said by qualifying them as to death penalty.

Justice Thurgood Marshall: Well --

Mr. David W. Clark: It was an agreed jury.

Both sides agreed that they would be --

Justice Thurgood Marshall: We are even not very qualified, don't we?

We don't even know where the other 21 though?

Mr. David W. Clark: They want a jury.

Justice Thurgood Marshall: We don't even know what they can hear?

Nobody questioned him at all, are you -- what is the practice, you just pick 12 people and put them in a jury box?

Mr. David W. Clark: Yes, sir.

You pick 12 and then you qualify them and then --

Justice Thurgood Marshall: But where is the qualification in this record.

Mr. David W. Clark: By agreement, both sides agreed that they --

Justice Thurgood Marshall: Now the record says it -- well, the judge says, If I'm correct, there are 12 people there.

That's what he says on page 10, If I'm correct that there are 12 on the panel of jurors seated in the jury box.

And he says, Is that satisfy -- satisfactory?

Both sides said, Yes.

Mr. David W. Clark: That Mr. Flagger was one of the sides and that he is a District Attorney there prosecuting --

Justice Thurgood Marshall: Him.

And then isn't it also true that at the end the judge said, Are you the same jury, was here yesterday?

Mr. David W. Clark: Well, Your Honor --

Justice Thurgood Marshall: He said --

Mr. David W. Clark: -- jurors are selected for a week, the --

Justice Thurgood Marshall: Sir?

Mr. David W. Clark: The juries in Alabama are selected for that week of --

Justice Thurgood Marshall: The same 12?

Mr. David W. Clark: No, sir.

Justice Thurgood Marshall: Well, he said, Young man I had to call you back as applied and misses something that acknowledge not where they just -- near the end there, well, he says, You were here.

I'll get the page in just a moment.

Justice Hugo L. Black: How is this jury selected?

The ordinary method is --

Mr. David W. Clark: Yes, sir.

They argue --

Justice Hugo L. Black: -- at the beginning of the week, the sheriff brings in jurors names --

Mr. David W. Clark: Yes, sir.

Justice Hugo L. Black: They're selected --

Mr. David W. Clark: From the jury roll.

Justice Hugo L. Black: And the judge then qualifies them as to whether or not they're able to serve the jurors on account of their age.

Mr. David W. Clark: That -- that is correct.

There was -- already been selected.

Justice Hugo L. Black: And then during the week, they divide it up and the man hasn't decided a question which says special qualification in regard to a particular case, they ask questions?

Mr. David W. Clark: That is correct.

Did this -- the jury had been --

Justice Hugo L. Black: Or that he was qualified at the beginning of the week, I assume.

Mr. David W. Clark: Yes, this one had been qualified as to that.

Justice Thurgood Marshall: Well, on page 32, some of you gentlemen were on the jury yesterday.

What's the meaning of that, it varies from day to day?

Mr. David W. Clark: Punishment?

Justice Thurgood Marshall: Does it vary or -- I thought you said the same 12 seat throughout the week?

Mr. David W. Clark: No, sir.

I said that the panel that -- they call at least 50 jurors.

Justice Thurgood Marshall: Well, just one more question.

Is -- is there anything in this record that shows that the court explained to the jury the range of sentence?

Mr. David W. Clark: No, sir.

They all charged there was not.

Justice Thurgood Marshall: So, the jury did not have any idea at all?

Mr. David W. Clark: I -- I beg your pardon, may I quote from the actual record, record page 30.

He said, If that board, he gave a definition of robbery.

Now, robbery once again gentlemen is a felonious taking of money or goods of value from another against his will and without his permission by violence of putting him in fear.

That boils it down in a nutshell just what robbery is.

Now, it carries from 10 years minimum in the penitentiary to the supreme penalty of death by electrocution.

Justice Thurgood Marshall: What page is that on?

Mr. David W. Clark: That is on -- that's the old rule charge --

Justice William J. Brennan: It's page 32.

Mr. David W. Clark: The page is -- is it on page 32 -- page 32 in the appendix.

Justice Thurgood Marshall: Well, I -- what is there that you just read that shows why you should give death in one case and ten years in another, that's my point?

Mr. David W. Clark: Yes, sir.

Justice Thurgood Marshall: Is there anything other than that?

Mr. David W. Clark: No, there was no direction as to how you would do that.

However, this Court pointed out in I believe it was Giaccio versus Pennsylvania, I think it was one of them, that they could do that.

A jury could find the degree.

There was nothing prohibiting that.

Now, I would point out that in Alabama, robbery is a capital offense.

That of course means it carries a death penalty and the -- they can, to a lesser degree give anywhere from death on down to 10 years.

And that's left to the jurors discretion now in spite of no instructions, you do have this, that this jury has heard the entire trial.

They have been able to determine how severe or a case of robbery this is in this particular instance that there was a gun used, there was violence and they confessed on that.

They are the best ones to judge how severe the sentence should be.

Chief Justice Earl Warren: The -- the entire trial is between pages 10 and page 31 --

Mr. David W. Clark: Yes, --

Chief Justice Earl Warren: -- of the record.

Mr. David W. Clark: -- that is the entire evidence they put on.

In Alabama when you have a plea of guilty such as we had here, they put on a prima facie case.

Now in all five of these cases, I think they called seven witnesses.

That's also required.

You have the man pleading guilty which is judicial confession to that effect.

He had a plea of guilty.

You have that plus the prima facie case made out by the state.

We maintain that sufficient to put it to the jury.

Justice Abe Fortas: Mr. Clark I know that on the transcript on 33, as the judge says, it's not in the hands of -- it is now in the hands of the state this have pronounced the sentence.

And it is up to the Governor if he cares to do anything about it.

It's not up to the trial judge.

Now, could we -- could you tell us whether he has -- whether there has been appeal to the Governor in this case?

Mr. David W. Clark: No, sir.

There has not been one yet because of this petitioner for this honorable court.

Had there not been one to this Court, then about two or three days before his execution there would -- been a hearing in the governor's office, a clemency hearing.

Justice Abe Fortas: Is that automatic or?

Mr. David W. Clark: Yes, sir.

That is automatic.

At this hearing he may appear by himself, by attorney, his family, his minister.

I have been at some of them that they've had as many as 35 or 40 people to speak for this man and ask that his case be commuted to life imprisonment.

But as you pointed out that there has been on a district --

Justice Abe Fortas: When was the last execution in Alabama?

They didn't have one last year, did you have?

Mr. David W. Clark: No, sir.

Justice Abe Fortas: I remember --

Mr. David W. Clark: That's has been several years.

Justice Abe Fortas: -- in the entire nation.

Mr. David W. Clark: In my brief I've pointed out one that was in 1964 that I handled that case through the Alabama Supreme Court and it went on to electrocution.

That incidentally was one for robbery.

Justice Potter Stewart: It also involved a very horrible killing too, didn't it?

Mr. David W. Clark: Yes, sir.

But may I explain that, Your Honor.

In Alabama --

Justice Potter Stewart: But you did in your brief or --

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: Certainly, you can explain it freely.

Mr. David W. Clark: Well, I -- I would have politely.

But in that particular case, there was a robbery and also that the man committed a murder while -- during this robbery.

It just happen that he was going with this young lady, he was a married man with a family and as the district attorney determined in that case that there were -- had two indictment, one for murder and one for robbery that it would be better to prosecute under robbery.

In Alabama they regard robbery as a serious offense.

Now a good attorney could have possibly --

Justice Abe Fortas: You don't suppose the --

Mr. David W. Clark: -- attacked the young lady's reputation and maybe they'd been merely held manslaughter conviction.

Justice Potter Stewart: But all of the -- I gather that the -- all of the circumstances of the robbery including this very gruesome --

Mr. David W. Clark: All they did was --

Justice Potter Stewart: -- it was a bizarre sort of killing where it was brought before the jury, is that correct?

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: What he took was the young woman's car after killing.

Mr. David W. Clark: Car, jewelry and some money.

Justice Potter Stewart: Yes.

Justice William J. Brennan: May I ask Mr. Clark, is your automatic appeal statute, would it apply had Boykin got a prison sentence instead of the death sentence?

Mr. David W. Clark: No, sir.

That applies merely to the --

Justice William J. Brennan: Only whether --

Mr. David W. Clark: -- death sentence.

Yes, sir.

He could've asked for an appeal and in granting one, also an attorney, a transcript of the record.

Now --

Justice William J. Brennan: And I gather that special statute is searching in the record, does that apply only with the automatic appeal statute applies?

Mr. David W. Clark: No, sir.

The appellate courts had that duty in our case --

Justice William J. Brennan: In all cases?

Mr. David W. Clark: That's --

Justice William J. Brennan: All criminal pleadings.

Mr. David W. Clark: -- look into the record.

Justice William J. Brennan: I see.

Mr. David W. Clark: Now the -- pardon.

There was something brought out about a motion for a new trial, usually that's done by the attorney who is appointed to handle the defense of that trial.

Also in a case which results in the death penalty, the same attorney goes right onto the Supreme Court.

In one form, it takes back, however, Mr. Gibbons is representing the defendant on appeal to the Supreme Court of Alabama and on a certiorari to this Court.

Justice Abe Fortas: May I ask you further sir, let's suppose that a defendant were tried on one count of robbery then the jury has a problem of fixing the punishment, is there any -- I don't suppose there's anything like a pre-sentence report or any evidence introduced as to his history, is there?

What is your practice?

Is there any effort to duplicate in front of the jury what is in the --

Mr. David W. Clark: No, sir.

Justice Abe Fortas: -- in the ordinary pre-sentence report by the man's family background and what kind of person he's been and whether this is an isolated incident or part of a long history of crime, the sort that a judge usually ask before him?

Mr. David W. Clark: No, sir.

Not in this type of case because jury returns a verdict.

However, the defendant could put on character witnesses, things of that nature during the trial.

Yes, sir.

Justice Abe Fortas: During the trial?

Mr. David W. Clark: Yes, sir.

He could do that.

Justice Abe Fortas: But suppose he had a led an exemplary life and suppose his counsel decided that for strategic reasons that he didn't want to get the question of guilt whether you did this or not makes up with the facts about the man's life which is of course kind of thing, conceivable, I'd badly described it but --

Mr. David W. Clark: Yes.

Justice Abe Fortas: -- sure, you'll agree that it is conceivable that a lawyer might make a strategic judgment of that sort.

Then the jury would have to consider punishment without anything before it as to what kind of man this is.

Mr. David W. Clark: That is true.

That would be a matter of trial strategy and --

Justice Abe Fortas: Well --

Mr. David W. Clark: -- and I don't think the --

Justice Abe Fortas: -- she might be a very, very critical one in which the lawyer makes the judgment in good faith and with professional competence that he later desperately regrets.

Mr. David W. Clark: Yes, sir.

Justice Abe Fortas: And his client therefore -- client is electrocuted, he probably regrets that even more.

Mr. David W. Clark: I feel that that this case here represents one of those.

This attorney entered a plea of guilty for the man and I suppose assuming that there would a prison sentence.

What brought this on as I pointed out earlier is there had been a series of robberies and the jury returned this verdict.

Justice Potter Stewart: Now, this trial took place September of 1966.

Mr. David W. Clark: That is correct, sir.

Justice Potter Stewart: And that's when the jury was in -- the panel sworn as indicated on page 10 of the appendix.

Mr. David W. Clark: Correct.

Justice Potter Stewart: Long before this Court's decision in the Witherspoon case, so that the defense counsel was not aware of any right to challenge the jury on the basis -- the constitutional basis on which Witherspoon was decided, was corrected?

Mr. David W. Clark: That is true.

However, he did have those challenges that were set out in Title 30, Section 55 and 57 and in the argument last week, I pointed out that if he had fixed opinion against capital punishment, could be the one on the Section 57.

However --

Justice Potter Stewart: How can you --

Mr. David W. Clark: We contend that they waived that.

Justice Potter Stewart: Well --

Mr. David W. Clark: It was by agree --

Justice Potter Stewart: It wasn't a known waiver though was it?

It couldn't have been any known waiver of any right under the Witherspoon case because the Witherspoon case hadn't been decided.

Mr. David W. Clark: And that is another thing I would like to point out to this Court.

This man still has his opportunity to go back before the state court on coram nobis and bring these things up.

At that time he would be appointed an attorney.

They would have a full hearing on these matters, the identical matters brought up now.

Justice Hugo L. Black: Is it still the law in Alabama that good character alone could be charged to the jury sufficient to generate a reasonable doubt of guilt?

Mr. David W. Clark: Yes, sir.

That -- that's still the law.

Justice Potter Stewart: Well, here there was a plea of guilt though so that would --

Mr. David W. Clark: Yes, sir.

That would be --

Justice Potter Stewart: -- hardly --

Chief Justice Earl Warren: Is a court not inquired into the voluntariness of a plea in Alabama?

Mr. David W. Clark: Yes, sir.

They should.

The record does not reflect that here.

Chief Justice Earl Warren: Well, wouldn't you think that it should be done by all means in a capital case where a man's life is at stake?

Mr. David W. Clark: Yes, sir.

Chief Justice Earl Warren: Why wasn't it done here?

Mr. David W. Clark: I don't know that it wasn't done Your Honor.

It's just not recorded as such.

Chief Justice Earl Warren: Well, can you tell us whether it was or was not done?

Mr. David W. Clark: No, sir.

I was not present at the trial.

However, I'd like to point out to Your Honor, you have Rule 11, your federal rules of criminal procedure that require such warning to the defendant and while no particular writs shouldn't be observed by the trial court such as a form finding a recitation of plea was entered with understanding and affirmed the duty, nonetheless exists on the part of the trial court to advise the accused fully.

And that's recited from Hulsey versus United States, that's 369 F.2d 284.

So apparently in your federal court volume, on your federal rules you have the duty.

You don't have to find, it simply show that in the record.

And there is no showing that this man was not advised to the serious and sentence relief.

Besides that he had an attorney to represent him.

Justice Hugo L. Black: Who tried the case?

Mr. David W. Clark: This one -- the particular one was before Judge Gillard.

Justice Hugo L. Black: How long has he been a judge?

Mr. David W. Clark: Judge Gillard has been on the bench I think about 6 or 8 years as a circuit judge.

At one time he serves as a probe judge also.

Justice Hugo L. Black: What are his initials?

Mr. David W. Clark: Walter Gillard, I believe.

And I don't the middle initial.

Justice Hugo L. Black: Was he in the span of Palmer Gillard?

Mr. David W. Clark: Palmer, his brother I believe and his father was I believe Palmer Gilliard also.

He was our senior member of the bar.

He died at the age of 103.

Now --

Justice Potter Stewart: The judge -- I'm looking at page 33 of the printed appendix, in sentencing the petitioner indicated at least by negative implication of you will that he had some discretion not to follow the jury's recommendation of a death sentence.

Is that right?

Mr. David W. Clark: Yes --

Justice Potter Stewart: Is it --

Mr. David W. Clark: -- they as a --

Justice Potter Stewart: He says in case number 15520, the court will impose a sentence according to the verdict of the jury.

And in case number 15521, the court again will follow the verdict of the jury.

So on and so -- which leads to a possible implication that he didn't have a duty to do so.

Am I -- what is the law of Alabama on that?

Mr. David W. Clark: Notwithstanding the verdict, I believe is that the judge could send it back?

Justice Potter Stewart: Send it back to whom?

Mr. David W. Clark: Yes, sir.

Justice Potter Stewart: For what?

Mr. David W. Clark: The jury didn't agree did a predetermined sentence.

Justice Potter Stewart: I wonder what kind of instructions.

Mr. David W. Clark: He could instruct the jury just on that matter.

He thought it was -- did not warrant that penalty.

However in Alabama your death penalty is provided of robbery and --

Justice Abe Fortas: Well --

Mr. David W. Clark: He'd already instructed them that --

Justice Potter Stewart: If they could --

Mr. David W. Clark: They have thought --

Justice Potter Stewart: -- that they did have that option.

Justice Abe Fortas: Now, is there any authority from that?

I don't -- as I read this perhaps I'm wrong, perhaps it's a little different from the way my Brother Stewart reads it.

I read it all this judge thought he could is to make a recommendation for clemency which will be to the Governor.

When you read the first couple of sentences of what he said there but can I know judge's -- trial judges can do things that aren't always strictly according to the book I suppose but is there any authority in the law for him to send the case back to the jury and ask him to tell, instruct them to reconsider their verdict.

Mr. David W. Clark: I don't have it before me Your Honor but there have been cases where they have done that.

Justice Abe Fortas: They have done it --

Mr. David W. Clark: Yes, sir.

Justice Abe Fortas: -- but you don't know of any --

Mr. David W. Clark: No, sir.

I don't have --

Justice Abe Fortas: -- statutory or case law --

Mr. David W. Clark: No, sir.

Justice Abe Fortas: -- that approves it.

Mr. David W. Clark: Now there was something brought out in the brief about the finding of guilty by the jury and the fixing of the sentence by that same jury violated his constitutional rights.

I believe this honorable court in a footnote in Giaccio versus Pennsylvania held that in so holding we intend to cast no doubt whatever on the constitutionality of the settled practice in many states to lead the juries fixing defendant's guilty crime, the power to fix punishment within legally prescribed limits.

Now, I found two cases when courts had followed that one is in California, In re Anderson, California Supreme Court on November 18th of 1968 filed it.

That was in a murder case however -- but they had -- they under I believe Section 160 of their Criminal Code, the jury could find the person guilty of murder in the first degree and under the Section 160.1 the same jury could fix his punishment at either death or life imprisonment.

And Supreme Court of California held that that was no violation of his constitutional rights and this same thing was followed in the Supreme Court of Washington, Washington versus Smith in the Washington Supreme Court on October 29th, 1968.

And the last paragraph of that opinion I think is a burden here.

The defendant's argument against the death sentence on moral and practical grounds are persuasive however they should be addressed to the legislature.

If as they maintain a majority of people today are impose to the death penalty an effort to get the legislature to eliminate it should have a considerable chance of success.

That's our contention if there's objection to the death penalty.

The proper way is to take that through the legislature and this --

Justice Abe Fortas: May I -- I'm sorry to ask you so many questions.

May I ask you a question about the nature of the trial here, now robbery is a capital offense?

Mr. David W. Clark: That is correct.

Justice Abe Fortas: And the court does not -- does the court accept the guilty without more or is this a trial on the question of guilt?

Was the jury informed that the defendant had pleaded guilty?

Mr. David W. Clark: Yes, sir.

They were informed and the jury --

Justice Abe Fortas: That doesn't appear here, does it?

But they are informed that the defendant had pleaded guilty?

Mr. David W. Clark: Yes, sir.

It doesn't appear from the record here but when there has been a plea of guilty in Alabama the jury hears a prima facie case to determine the seriousness of the crime.

Justice Abe Fortas: To deter -- in other words --

Mr. David W. Clark: To determine the sentence.

Justice Abe Fortas: So do you argue that in the sense, this is not a unitary trial, what happened here in the sense that this trial was on the question of punishment?

Mr. David W. Clark: Yes, sir.

It was meant -- principally the question of punishment.

There had been a plea of guilty already.

Justice Abe Fortas: And that that plea of guilty is accepted in --

Mr. David W. Clark: Yes, sir.

That --

Justice Abe Fortas: -- in Alabama even if -- suppose this had been a murder case, is it a custom on Alabama to accept a plea of guilty?

Mr. David W. Clark: Usually when they enter a plea of guilty to murder they'll enter a plea of murder to the second degree which would cover the life sentence.

But --

Justice Abe Fortas: But it's clear -- you don't know of any situation --

Mr. David W. Clark: No, sir.

They --

Justice Abe Fortas: -- a plea of --

Mr. David W. Clark: -- to track them --

Justice Abe Fortas: -- guilt.

Mr. David W. Clark: -- first degree murder.

Justice Abe Fortas: They -- they go to trial?

Mr. David W. Clark: They go to trial.

Yes, sir.

Justice Abe Fortas: And they don't accept the plea of guilty.

Mr. David W. Clark: No, sir.

Justice Abe Fortas: But despite the fact that the ultimate result may be the same here namely electrocution.

In a robbery case, the court will accept and lay before the jury the plea of guilty.

Mr. David W. Clark: Yes, sir.

Justice Abe Fortas: Is that correct?

Justice Potter Stewart: Are you saying it is a matter of law, the court is not allowed to accept a plea of guilty to first degree murder of Alabama or are you just telling that that's the practice?

Mr. David W. Clark: I know of no case in which that has happened Your Honor that they held --

Justice Potter Stewart: Well, for example in the state that -- with which I'm most familiar as a matter of law, a trial court is limited in accepting, that being allowed to accept a plea of guilty to first degree.

Is there any such law in your state?

Mr. David W. Clark: No, sir.

I know of none but I had in practice --

Justice Potter Stewart: You just mean as a matter of practice they cup a plea to second degree murder?

Mr. David W. Clark: That's correct.

Justice Hugo L. Black: Well, if they plead guilty to murder in the first degree unless it's changed that time, was it?

Mr. David W. Clark: Yes, sir.

Justice Hugo L. Black: Is the law -- the judge is required to call a jury, give the jury enough evidence to show a prima facie case just that number of witnesses and to show -- give the jury enough information on which it supposedly he could -- they could rest a verdict.

And that's the way it's done and by the first -- it was done in that way in the first place.

Mr. David W. Clark: That is not.

Justice Hugo L. Black: Has that been changed?

Mr. David W. Clark: No, sir.

I believe Mr. Justice Black, that's the answer to my question.

Justice Abe Fortas: So it's not just a penalty to trial as perhaps you stated and I didn't get the implications of it.

This is something more than just a penalty trial, its penalty trial plus a trial in which a prima facie case is made that the guilty plea is warranted?

Mr. David W. Clark: Yes, you could not have the conviction without putting on a prima facie case.

Justice Byron R. White: But could the jury after the prima facie case goes in and the judge says lets go the jury, is the jury permitted to find him innocent?

Mr. David W. Clark: No, sir.

It would not be on this robbery.

Justice Byron R. White: And didn't the jury's verdict actually recite that the jury found him guilty as charged, the indictment on his plea of guilty.

Mr. David W. Clark: Yes, sir.

Justice Byron R. White: What the verdict actually recites.

Mr. David W. Clark: I think that's what this is.

Justice John M. Harlan: What happened if the judge finds a prima facie case not made out?

Mr. David W. Clark: He could so instruct the jury.

Justice John M. Harlan: Instruct the jury of what?

Mr. David W. Clark: That no prima facie case was made out.

Justice John M. Harlan: Therefore --

Mr. David W. Clark: Then I'll assume the defense counsel would then move for a directive verdict.

Justice Abe Fortas: After a plea of guilty?

Justice Potter Stewart: After a plea of guilty?

Mr. David W. Clark: That would taint the --

Justice John M. Harlan: What I mean is, would that be -- is that ever happened?

Mr. David W. Clark: No, sir.

Not to my knowledge.

Prima facie case wouldn't take too much to put on Your Honor just one or two witnesses at the most.

Justice Hugo L. Black: Well, I have a very vivid recollection of that practice, I thought I was appointed and the -- it was -- a jury was called, a jury was selected, I had a trade whereby he was not to get this, the jury came back and tried to defy the court's order.

They wanted to give him a death sentence on a prima facie case and the judge find -- they told them they could give it to him but he set it aside.

Mr. David W. Clark: Yes, sir.

That --

Justice Hugo L. Black: That's all they accepted.

Mr. David W. Clark: That's what I mentioned a while ago, would it satisfy --

Justice Hugo L. Black: That is the practice -- that was the practice then to my knowledge.

Chief Justice Earl Warren: Mr. Clark, I noticed that on page 25 of the petitioner's brief that he raises a question, a guilty plea to be effective must be made voluntarily, knowingly and intelligently.

And he says a trial judge has an affirmative constitutional duty to ascertain whether or not a guilty plea was voluntarily made.

Mr. David W. Clark: Yes, sir.

Chief Justice Earl Warren: Now, if we take this record as it is in this transcript, there is nothing to indicate that there was anything done by the Court to determine whether it was voluntarily made.

Must we assume that this is all that the Court went on?

Mr. David W. Clark: Yes of course they're substantially the same as the original record.

Chief Justice Earl Warren: So if we --

Mr. David W. Clark: However -- oh, you -- I get what you mean sir.

No, sir.

You are assuming that he did not because it does not appear in the record, is that correct?

Chief Justice Earl Warren: Yes.

Justice Abe Fortas: Yes.

Chief Justice Earl Warren: Are we entitled this --

Mr. David W. Clark: And I believe the case cite --

Chief Justice Earl Warren: -- that we must decide it on this record, that that's all there is on that subject matter.

Mr. David W. Clark: Yes, sir.

Now the case of O'Connor versus Cochran that he cited in support of that had to do with the confession I believe but -- I did cite a case wherein it -- there was no particular format that they had to use or nothing -- in the effect on --

Chief Justice Earl Warren: If it isn't a question of format, there was absolutely nothing here, that's the problem, absolutely nothing.

Now, is there anything in the record that we can consider to negate this statement that a trial judge has an affirmative constitutional duty to ascertain whether or not a guilty plea was voluntarily made?

Mr. David W. Clark: No, sir.

But all it appears there is not shown in the record, exactly the questions he asked.

Chief Justice Earl Warren: Well --

Mr. David W. Clark: If he --

Chief Justice Earl Warren: Well, if we decide this issue, this particular issue, are we entitled to decide it fairly on what is in this transcript and nothing more?

Mr. David W. Clark: Yes, sir.

That's -- that's all the spoken and written words that were transcribed and put in the record either in the record that it was before the Alabama Supreme Court of this Honorable Court.

However, as I've pointed and I cited one case that there's nothing that requires to my knowledge that it appear in the record that he did so advised and in fact say, Mr. Boykin, you know that you can get the death penalty.

Chief Justice Earl Warren: Well, I wasn't asking about your law, I was asking about the facts in this case.

This is all we have to go.

Mr. David W. Clark: Yes, sir.

Chief Justice Earl Warren: Very well.

Mr. David W. Clark: That's correct.

Your Honor I believe that that in my brief explained my points and I thank you for your --

Chief Justice Earl Warren: Mr. Gibbons.

Rebuttal of E. Graham Gibbons

Mr. E. Graham Gibbons: Mr. Chief Justice, may it please the Court.

I have just a couple of comments in rebuttal.

One is with regard to the post-conviction remedy that the Attorney General suggests that Edward Boykin might follow.

I -- when I get back to Mobile, I might be able to think of ten or eleven more, but I can think of three right now.

One is that he might be dead before somebody gets interested in filing a post-conviction remedy.

The second is that in a post -- in a post-conviction remedy --

Justice Hugo L. Black: Isn't the sentence had been stayed?

Mr. E. Graham Gibbons: Sir, it has been stayed by the Supreme Court of Alabama pending the hearing in this Court.

Secondly, he has no right of attorney.

The Attorney General indicates that he has it as a matter of right and yet here's an excerpt from the Code of Alabama and the first case annotated under this Section of Appointment of Counsel for a Coram Nobis Hearing is that the trial judge in his discretion can determine whether he gets appointed counsel or not.

And the third ground that post-conviction remedy is not satisfactory is that in a post-conviction remedy, the petitioner has the burden of proof.

He has already sacrificed his cloak of innocence.

He's already sacrificed the Court's scrutiny of his fundamental rights because in a post-conviction remedy hearing, he has to prove and I submit that this Court holding that in a trial in a capital case if the record must affirmatively disclose, then think of the burdens that post-conviction remedies would solve.

It'd take a lot of burden off of courts to jut ask for -- just to apply this simple rule.

Edward Boykin wouldn't need a post-conviction remedy if the record affirmatively showed -- now, there's another point if --

Chief Justice Earl Warren: You may take your --

Mr. E. Graham Gibbons: -- if I may just say it --

Chief Justice Earl Warren: You may make your last points.

Mr. E. Graham Gibbons: There is no automatic clemency hearing that I know of in Alabama.

If he has an attorney, he can ask for it but there's nothing in the statute that says he has it as a matter of right.

Thank you.

Chief Justice Earl Warren: Mr. Gibbons, would you mind submitting to the Court a copy of your brief in the Supreme Court of Alabama?

Mr. E. Graham Gibbons: Yes, sir.

And the -- Your Honor that's two --

Chief Justice Earl Warren: Yes.

Mr. E. Graham Gibbons: I've submitted two briefs.

Chief Justice Earl Warren: You have, you say?

Mr. E. Graham Gibbons: I -- I submitted two briefs.

Chief Justice Earl Warren: Oh, yes.

Well both of them then and may I ask the same to the Attorney General that if you have any response be made to it, you may do so.

Rebuttal of David W. Clark

Mr. David W. Clark: Your Honor I have copies of Mr. Gibbons' both of his briefs --

Rebuttal of E. Graham Gibbons

Mr. E. Graham Gibbons: Here?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

They had been in my folder --

Chief Justice Earl Warren: Well, may they be submitted then Mr. -- submit to our clerk, no hurry about it, you may do it to make sure --

Justice Hugo L. Black: Can I have a copy the state's brief also, I guess --

Mr. David W. Clark: Yes, sir.

I have --

Chief Justice Earl Warren: Mis -- Mr. Gibbons, in as much you have accepted the assignment of this Court to represent this indigent defendant, the court would have you in awe that it appreciates your service.

We consider that a real public service and we're indebted to you for having made this representation of this indigent defendant.

And of course Mr. Clark, we likewise appreciate the diligent manner in which you have represented the people of your state.

Mr. David W. Clark: Thank you, Your Honor.

It's always a pleasure and privilege to be able to.

Chief Justice Earl Warren: Thank you.

Mr. David W. Clark: May I state to the Court that I consider it a greatest honor that I have received during my legal career.

Chief Justice Earl Warren: Thank you.

Featured:

Garrity v. New Jersey - Oral Argument

Thu, 23 Aug 2012 18:10:17 +0000

Case:

Garrity v. New Jersey

Media File:

13_19661110-argument.mp3

Related Transcript:

13_19661110-argument

Transcript:

Argument of Daniel L. O'connor

Chief Justice Earl Warren: Number 13, Edward J. Garrity et al., appellants versus New Jersey.

Mr. O'Connor.

Mr. Daniel L. O'connor: Mr. Chief Justice and may it please the Court.

The case which we are considering now is on appeal from the Supreme Court of the State of New Jersey.

There are two cases which have been consolidated on this appeal both of which involved practically the same set of facts and the issues are identical.

The cases below involved police officers who were serving the boroughs of Bellmawr and Barrington in the State of New Jersey.

In the first case below, the appellants Garrity in virtue were indicted, tried and convicted.

There was a third defendant in that case a Mrs. Naglee who is not a party to this appeal by reason of the fact that she was deceased.

The second case involved three police officers of the borough of Barrington, Mrs. Holroyd, Elwell, and Murray.

As I've stated there's no basic dispute as to the facts in the case but because this case was allowed by this Court and jurisdiction -- the question of jurisdiction was deferred pending oral argument, I feel it necessary to go into the background before I reach the argument on jurisdiction.

This case had its inception in an order of the Supreme Court of New Jersey dated June 30, 1961 or in it directed the Attorney General for the state to conduct an investigation into the practice of downgrading traffic ticket violations in these two boroughs namely Bellmawr and Barrington.

Both order -- the order to investigate both boroughs was signed on the same date and the Attorney General designated one of his deputies to conduct the investigation.

During the course of the investigation, it became necessary to take oral testimony of the defendants.

The New Jersey in 1953 enacted a state statute which became very pertinent in the taking of the statements in which is the reason why we're here today.

Briefly, that statute provided it's denominated the generally is the official conduct statute and statutes of this type are not strangers to this Court.

It provides briefly, that any person holding public office who haven't been sworn, refuses to testify or to answer any material question upon the ground that his answer may tend to incriminate him or compel him to be a witness against himself shall if holding public office be removed that forfeit his office, position or employment and any vested or future right or tenure, and pensions granted to him.

That then goes on provide that he shall not be eligible to hold public office in the State of New Jersey for ever after.

Now, prior to taking the statements and after swearing the defendants, the investigating Deputy Attorney General gave a warning in which he advised each defendant of his right not to incriminate himself but explain to them that if he -- if they made a disclosure then they would have to answer questions on all other -- answer all other questions which were asked.

And then after advising them of their right not to testify, he went on to nullify that right by saying, “but because you are police officers and there is a statute in this state which requires you to testify and if you don't then you will lose your jobs.”

Now, that warning all defendants testified.

They incriminated themselves by explaining the method of how tickets were downgraded and subsequently the state -- the State Supreme Court of the Attorney General's office referred the results of the investigation to the Camden County Prosecutor for presentation of the grand jury.

The grand jury indicted --

Justice Potter Stewart: That warning that you refer to presumably emphasize there's an accurate statement of the Jersey law, wasn't it in the statute?

Mr. Daniel L. O'connor: It was an accurate statement of the law insofar as it went and as far as the statute was concerned, yes.

There's no question about that.

In other words, what he and thinks and said what exactly what the statements says.

In other words, the statute says that if you refuse to testify and you are holding public office then you shall be removed from office.

The wording of the -- I'll read that just a little bit later because I want to read encompass in my argument the exact statement which was warning which was given.

They were indicted on a charge of conspiracy to obstruct the due administration of the motor vehicle traffic laws of New Jersey.

There was a trial at the trial after the introduction of evidence by the prosecutor.

The introduction of these statements became an issue.

In the trial court for the extensive argument from the prosecutor, from defense counsel and participated in the argument and discussion himself as to whether or not this particular statute and the warning given was compulsory and whether or not the statements were voluntary.

The trial judge ruled that the statements were voluntary admitted them into evidence.

They were read to the jury.

Defendants were convicted and they filed a motion for a new trial.

The motion for the new trial and at this juncture the Garrity case was tried first, the Holroyd case was tried second, when the motion for new trial was made they were consolidated and stipulations were entered by trial counsel in both cases at the issues were the same.

So the trial judge in considering the motion for new trial considered both cases together.

He rendered -- the motion for new trial was denied.

But he rendered an opinion quite to link the opinion which appears at page 545 of the record and he touched specifically upon the constitutionality of the statute and as it related to the warning and to the admissibility of the statements of voluntariness of the statements.

He goes on at length in reviewing the Twining case.

He reviews the Adamson case and he quotes at lengths from Mr. Justice Black's dissent therein and in my opinion the frustration of the trial judge in not being able to hold the statute unconstitutional.

It displayed in one paragraph of its opinion and I would like to read it to the Court.

This in on page 547 of the record, “This Court is -- and this is a trial judge speaking, “This Court is also aware that the Adamson case was at five to four decision and that since 1947 notable expansion of the Due Process Clause has taken place.

Then he goes on in spite of the above dissent referring to Mr. Justice Black's dissent and the continual broadening trend of the Due Process Clause a trial court must take the laws that finds it and cannot create new law at this level.

It follows therefore that the statute does not violate the federal constitution.

I say and I think in all sincerity that the trial judge encountered a frustration there because it was his desire and his wish to declare it unconstitutional but because of the laws that stood at that time he was unable to.

From the trial court, an appeal was taken and in the appellate division which is an intermediate appellate step in the New Jersey jurisdiction.

The Supreme Court of New Jersey reached down and certified the case to itself, it heard argument from counsel, it considered the briefs and I must say the argument of counsel, the briefs of both parties, all touched upon the constitutionality of the statute.

In the opinion of the Supreme Court of New Jersey, they made two findings which are extremely pertinent to us to here today.

One was that this statute created a type ought to be warning given by the Attorney General was a type of compulsion which could be legitimately used and then it went on and considered the constitutionality of the question and avoided that issue by finding that the defendants had no standing to question the constitutionality of the statute.

Now, that brings me to the question of the jurisdiction of this Court to consider this matter.

The appeal was taken under Section 1257 subparagraph 2, Title 28 and in order for jurisdiction to attach to this case.

There are two factors which must be met.

One is, was the constitutionality of the statute and the issue in the courts below and secondly, did the state court render an adverse finding?

It's our contention that both factors are present at this trial.

The trial judge made an expressed finding which I have read to the Court.

The Supreme Court even though it was raised on appeal and argued both in oral argument and brief.

The Supreme Court avoided the issue by saying that the appellants did not, were not in a position to challenge the statute.

And I'd like to read from page 327 of the record, the exact language of the Supreme Court of New Jersey in that connection.

It's very short.

The defendants further contend that New Jersey statute 2 (a) 8117.1 is unconstitutional.

As we have mentioned earlier in this opinion Mr. Reg, that's the Attorney General that took that statement and did not expressly threaten to invoke the sanction of the statute against the defendants Garrity in virtue.

The warning he gave them was to the effect that if they did not cooperate in the investigation they might be subject to dismissal as a result of a subsequent proceeding.

We determined that such a dismissal would be proper even in the absence of the statute.

Therefore, we conclude that the defendants in the circumstances of this case are not in a position to challenge the constitutionality of the statute.

What the Supreme Court did, it avoided meeting the constitutional issue and set itself up as the final arbiter as to who can raise a constitutional question.

That is a prerogative of this Court as to what citizens of the states can raise the constitutional question.

The Supreme Court cannot avoid it and this Court must accept that.

In other words, it has done indirectly what it did not want to do directly.

Now, on this appeal, there are three principle questions raised.

One is the constitutionality of the statute.

The second is the admissibility of the statement in evidence during the trial and the third is a question as to whether the Supreme Court of New Jersey could properly review as non-judicial act in which it participated.

The first question is squarely within the jurisdiction of the Court.

It meet all -- meet both factors as required by Title 28.

The second question is so intertwined with the first that it cannot be separated because if the first question, if an answer to the first question the Court finds that the statements were involuntary then it naturally follows that the admissibility of those statement in evidence was depravation of due process.

The Court -- third question we concede is not within the appellate jurisdiction of this Court but it is of such significance that it could be considered.

The second and third questions can be considered because they deny of federal right and if the first question is a properly -- with it properly within the appeal jurisdiction of the Court then because the other two questions are of real substance and have denied a federal right then they can be considered by this Court.

Lastly, as far as jurisdiction is concerned in the even this Court should decide that the first question is not within the appeal jurisdiction then the appellants rely on Section 2103 of the Code which provides for certiorari in matters where the -- in themselves would be subject to certiorari.

I now leave the question of jurisdiction and I turn to the principle question of argument today and that is the constitutionality of New Jersey's statute 2 (a) 8117.1.

This case challenges the use of the statute to extort or extract so-called voluntary statements from defendants and at this time I want to read to the Court the warning which was given to the defendant Holroyd.

The Deputy Attorney General prefaces remarks as follows and I'm reading from page 10 of the brief.

Question, All right, under a Supreme Court order dated the 20th of June 1961, I have been directed to investigate irregularities in the handling of municipal court vehicle matters in the borough Barrington and how they have been handled by the court and local police departments.

As a result, I have asked you to come here today so I may put questions to you.

Answer, Yes.

Question, I want you to fully -- to realize fully however, any answers you give must be voluntary without any coercion, threat, or promise of reward and those answers may be used against you or any other person.

You have a privilege to refuse to disclose any matters which might tend to incriminate you.

However, if you make such a disclosure, you thereby waive your right or privilege in relation to any face of this investigation in the future.

Now, we get to the pertinent part.

Under our laws, as a police officer, you are subject to a statute which provides however if you exercise this right or privilege a proceeding may be instituted against you to have you remove from office.

Answer, Yes.

Knowing all of these, you're willing to proceed.

Answer, Yes.

I think the courts of this case rest in the Supreme Court of New Jersey's finding that this was a type of compulsion which could be legitimately used.

And here the Court is admitting that compulsion was used and question that to be answered is, has this Court or the Fifth Amendment privilege or the Fourteenth Amendment guarantee of Due Process ever acknowledge any degree of compulsion.

In other words, can the privilege at the whim of the court by declaring degrees of compulsion nullify this privilege?

I don't believe that the compulsion of any type can be tolerated by the Fifth Amendment nor do I believe and is recognized just like the Fifth Amendment does not distinguished between race, creed, or color, social standing or otherwise.

I know that the Attorney General, the Deputy Attorney General in giving the statement probably felt that he was giving to those defendants information concerning the laws of the State of New Jersey.

But one thing that he did was mislead them to the extent of saying you may be subject to a proceedings to have you removed.

There is no room in the statute for a may or maybe.

The statute is not permissive, it is mandatory.

It says shall be removed and the State of New Jersey and two of its own --, the Supreme Court of the State of New Jersey and two of its own cases, Lava versus North Board of Education and Lowenstein versus North Board of Education has interpreted this statute to be mandatory.

Both of the cases are cited in the briefs so I won't give the citation but I'd like to read from the Lava case.

And this involved a fitness hearing on a school teacher by the North Board of Education and the Supreme Court in reviewing the applicability of this particular statute to that proceedings it says, it does not of course restrict the preexisting power of a supervisory school authority to conduct an inquiry in to the continued fitness of a teacher but seemingly has the additional effect that if during the course of such an inquiry there's a refusal to answer which falls within all the pertinent terms of the statute.

Then, dismissal is mandatory and in the law in Lowenstein case which was decided some four years later in 1961 and which likewise had the question of a teacher's dismissal of conduct unbecoming a teacher the Court commented and interpreted its own decision in the Lava case and in comment on the Lava case the Court held the inquiry approach was premised on the obligation of a teacher to respond fully without any right to rely on a constitutional privilege.

Justice Abe Fortas: Mr. O'Connor, is it all in conflict with previous position, a decision charged a little earlier?

As I understand in your saying that the reference of these petitioners to the disposal statute constituted a threat and now you're saying that the reference was quite as tough as the statute in reality is, is that --

Mr. Daniel L. O'connor: The threat -- the warning referred to the statute.

The warning said, as police officers you may be removed or as the Supreme Court says, it is mandatory -- Supreme Court of New Jersey says, it's mandatory.

Justice Abe Fortas: I understand that what your legal point is the result of the -- what point are you submitting to us is the result of that -- and the petitioners were mislead?

Mr. Daniel L. O'connor: Well, I'm saying that the investigating officer attempted to mislead.

He gave the warning and then instead of saying, you will be out of your job if you refuse to testify.

He said, you may or may be subject to this proceeding.

Justice Abe Fortas: The first part was that he was intimidating by calling their attention to the warning to the dismissal statute.

Mr. Daniel L. O'connor: There's no question about the intimidation.

The defendants were well aware of the statute.

They were well aware that it was mandatory.

Justice Abe Fortas: You're not making a point that they were -- that the statute we should reverse here because the witnesses were --

Mr. Daniel L. O'connor: Mislead?

Justice Abe Fortas: -- incriminating?

Mr. Daniel L. O'connor: No, no I just called that --

Justice Abe Fortas: Or mislead which is -- that is your point?

What is your point, are you urging that we should reverse because the petitioners were mislead or because they were --

Mr. Daniel L. O'connor: Because of the threat.

The threat which was given under the statute they would be out of a job.

In other words, anything that proceeded in this inquiry was under the rest and coercion by reason of the fact that the defendants had no choice.

They either talk or they were out of their jobs.

Justice Abe Fortas: There's a fact that the statute existed some statute was mentioned to petitioners like any difference.

Would your point be the same?

Mr. Daniel L. O'connor: I think that it just embellishes the threat.

Justice Abe Fortas: That is the very -- what you're doing is to attack the very existence of the statute.

Mr. Daniel L. O'connor: That's right.

Justice Abe Fortas: You're saying that the very existence of the statute --

Mr. Daniel L. O'connor: It's coercive, it's compulsive.

Justice Abe Fortas: Coercion.

Mr. Daniel L. O'connor: The mere fact that it's on book of every public employee of the State of New Jersey is under this --

Justice Abe Fortas: Well, what actually happened here is that the petitioners did testify.

Mr. Daniel L. O'connor: They did testify.

Justice Abe Fortas: And they were not fired.

Mr. Daniel L. O'connor: They were not fired.

They were fired after conviction.

They lost their jobs after conviction.

But this is a settled use of the statute to obtain confessions and then use those confessions in the conviction of the individuals.

Justice Abe Fortas: Well, then you're saying that appears through several layers here, don't we in causation.

You're asking us to set aside the judgment on a count of the trial -- on the count of after trial their statement were used and because those statements were subject to the impairment that's the existence of the statute that comes to coercion.

Mr. Daniel L. O'connor: Well, the defendants had no choice Your Honor.

The investigating officer put it to them.

What he did, he said, look, you have the right not to testify but if you exercise that right then the effect of the statute comes to bear and you're out of your job.

So they had no choice.

They didn't have the freedom of choice at the very threshold that's said in Malloy versus Hogan of the unfettered exercise of their own free will.

They had to choose a lesser of two evils.

There was no freedom of choice.

This statute is compulsory in its inception and its objective and I would like to read to you the legislative history in connection with this.

This statute had its inception with the Chicago Crime Commission and the counsel of state governments back in 1953 after the spectacle before the Keith law firm and McCarthy committees of public officials, hoodlums and racketeers appearing before them and taking the Fifth Amendment and this -- the legislative history, this is the report of the state legislature at the time the bill was enacted.

And I'm reading from appendix 1 (a) of the brief.

It is proposed by this bill to remove the impediment to investigation which is contained in constitutional provisions protecting the privilege against self-incrimination.

It would penalize any person who refuses to testify on matters relating to his office on the ground that his answer might tend to incriminate him or by requiring that he forfeit his office and be prohibited from whole and further office referred to five years.

It is been argued that the bill and effect now applies the constitutional protection against self-incrimination for the public official involved.

They may exercise their privilege but to do so involves the loss of their primary livelihood.

So, any public official with the statute such as this on the record books when he is involved in an official inquiry he has no freedom of choice whatsoever and this is a criminal proceedings.

This is not a similar proceeding, this is a criminal proceeding.

Justice Byron R. White: But do you really care whether the statute is involved here or not?

Mr. Daniel L. O'connor: I beg your pardon.

Justice Byron R. White: Do you really care whether the statute is involved here or not?

Mr. Daniel L. O'connor: Well, I think the statute is very much involved.

Justice Byron R. White: I know you think but why do you care whether it is or not?

Justice William O. Douglas: Not in here.

Mr. Daniel L. O'connor: Well, I think so, yes.

If the statute were not involved why there wouldn't be appellate jurisdiction.

Justice Byron R. White: I know but the only reason you care about that is you want the case here and you want to decide it.

What if somebody said, we'll repeat the certiorari -- the cert?

Mr. Daniel L. O'connor: No, I think this Court -- if this Court has treated --

Justice Byron R. White: I mean the statute doesn't add anything to the warning, does it?

Mr. Daniel L. O'connor: But it's the use of the statute, it's the use of the statute --

Justice Byron R. White: Let's assume there was no statute at all and the same thing happen, assuming no statute, there was no reference to -- assume no New Jersey statute on the question of at all, the district attorney just called the police officer, he'd be fired if he didn't answer.

Mr. Daniel L. O'connor: Then you say and go to the voluntariness of state?

Justice Byron R. White: Yes.

Well, isn't that your argument here?

Mr. Daniel L. O'connor: In essence, it is but the removal of the statute -- I mean, this statute has been before the Court in enormous occasions and this to our knowledge is a first time it's been used to extract statement and statements were given.

Justice Byron R. White: Yes, I know but it doesn't add anything to what to the district attorney's statement.

You know this is good argument if there wasn't a New Jersey statute at all.

Mr. Daniel L. O'connor: Well, that the investigating officer wouldn't have the statute to rely on to compel him to testify.

Justice Byron R. White: It relied on it.

Mr. Daniel L. O'connor: Well, he didn't call it by name but he referred to it specifically.

We have a statute which requires you to testify.

Justice Byron R. White: Well, a New Jersey Supreme Court can testify.

Mr. Daniel L. O'connor: Well, that's what I say to New Jersey Supreme Court avoided.

The New Jersey Supreme Court went off on tenure of some high duty that the police officers suppose to have to testify under any circumstances.

Justice Byron R. White: Well, I'll put it this way --

Mr. Daniel L. O'connor: But this high duty doesn't -- we don't reach that here.

Justice Byron R. White: I'll put it this way, the reversal in this case doesn't depend on our finding of the New Jersey statute was involved and was upheld.

Mr. Daniel L. O'connor: I think it can be argued that way but I do think that statute is very much involved.

And I --

Justice Byron R. White: I think its (Voice Overlap) if you would be willing to say that if the statute doesn't -- we don't think the statute is involved which you referred.

Mr. Daniel L. O'connor: If you don't think the statute is involved should affirm, no.

I wouldn't make that confession.

No, I think the statute is involved 100%.

I think that's the crux of the case because if it were not for this -- if it were not for the statute, these statements would not have been obtained.

There possibly would never been a trial in the courts below.

We wouldn't be here today.

It's a mere presence to the statute on the books -- on the statute books of New Jersey that has brought us here.

No, I don't agree with you Mr. Justice White.

Chief Justice Earl Warren: Well, would you agree within to this extent that your position would be if there was no statute that the fact that this warning was given by the Attorney General to the effect that if he didn't testify there might be a proceeding against him so far as his job is concerned and he gave it because of that threat that you would still be entitled to --

Mr. Daniel L. O'connor: Well, this -- Mr. Chief Justice, this goes to the long line of cases involving police officers and removal of office by reason of unfitness for duty or disobedience and subordination or something.

And the Supreme Court touched on all those cases.

It didn't meet the real issue.

Chief Justice Earl Warren: Yes, that's fine.

Mr. Daniel L. O'connor: And that's why I say that the statute can't be isolated from the warning because of mere presence of the statute on the statute but was a coercion and compulsion which these police officers were subjected to if the statute wasn't there, sure, they take it to their chance before a trial board maybe.

But this statute and these are men that had 15, 16 years to service and they had real pension rights.

So, no, I think the statute is very much involved and in any warning without the statute, the fact that -- see, they knew it's mandatory that they be removed from their jobs.

Chief Justice Earl Warren: Yes.

Mr. Daniel L. O'connor: This was the point where they could take their chances for a trial board or something like that.

Chief Justice Earl Warren: Well, let me ask you this, do you concede that if there wasn't the statute and this same warning had been given and he had testified and the other things had resulted that you would lose here?

Mr. Daniel L. O'connor: I can only speculate as to what would've happen at the time and my speculation would be that they wouldn't have given the statements.

See, that's the only thing.

In other words, this is an accomplished fact now.

Chief Justice Earl Warren: Yes.

Mr. Daniel L. O'connor: And if that statute was not on the books and this threat of the loss of the livelihood hanging over their heads and this attorney general or asking them questions and he gives them their warning and he says, you maybe subject to a trial board proceedings.

I would weigh that they would not testify.

They take their chances for the trial board but by the mere presence of the statute, then they gave their statement.

So, that's why I say that the statute cannot be removed from consideration of this case.

I see my five-minute warning and I see and I have one last point that I want to touch upon and that's the non-judicial action of the Supreme Court of State New Jersey.

This point is raised for the first time here.

I'm well aware of the precedents of the requirement that this Court does not consider matters that have not been considered in the courts below.

But it seems to me so contrary to our concepts, democracy and justice under our constitutional government that any time a state Supreme Court initiates an investigation, conducts the investigation, reviews the results of those investigations and undoubtedly pre -- had a preconception of guilt refers those investigations to a prosecutor for grand jury action and after trial and conviction takes the case into itself and sits in judgment on its own preconceived ideas is a matter which presents the serious challenge to this Court.

I don't think any court in any state of the union should act as investig – complainant, investigator, prosecutor, and a court of last resort.

It's so foreign our concept of justice that I was shocked when I was brought into this case (Voice Overlap).

Justice William J. Brennan: Well, wait a minute, that's all pursuant to a system in the judgment and of which the municipal court was subject to the supervision of the supreme courts, that what I think.

Mr. Daniel L. O'connor: I understand that and I've read the brief of --

Justice William J. Brennan: All of these instances of difficulties in the municipal courts where the 500 of them indicate this is just a system by this that are investigated to administrative directors today.

Mr. Daniel L. O'connor: Mr. Justice Brennan, with all due respect to the system that exist in New Jersey and I'm certain that the system exist in others of the 50 states similar to that that this act there has to be found --

Justice William J. Brennan: I'm not speaking about the act.

I thought you were complaining about the use of the Attorney General that they can --

Mr. Daniel L. O'connor: This act -- no, this act of the Supreme Court should be reviewed and this Court should consider.

It's a real challenge.

Frankly, I don't know how to go about it, what solution to recommend.

Justice William J. Brennan: You mean, it is a federal constitution infirmity in a system under which the Supreme Court of New Jersey to which it administers director's office, supervises the fiscal affairs of the municipal courts.

Mr. Daniel L. O'connor: In matters of involving potential criminal violations, it should be referred to --

Justice William J. Brennan: That's what I want to say --

Mr. Daniel L. O'connor: To the executive for investigation, yes.

In other words, they have to remain a loop.

Justice Byron R. White: Why wouldn't to the interest of your client be added to detected if all there's a court rule was any evidence is obtained and this method -- by this method is inadmissible at the trial.

You just can't (Voice Overlap) this evidence.

Mr. Daniel L. O'connor: That's one solution but I don't think it's the whole solution Mr. Justice White.

Justice Byron R. White: Well, I know but you're complaining that this man has been convicted by the use of evidence that was coerced.

Mr. Daniel L. O'connor: Yes.

Justice Byron R. White: Now, if we take you at your wording say yes there was coercion here.

This conviction is reversed, that's all you've asked us to do.

Mr. Daniel L. O'connor: If you want to give me that (Voice Overlap).

I beg your pardon.

Justice William J. Brennan: You want us to strike down the statute and you want us also to strike down the whole system of supervision of the judges of Supreme Court power, in addition to relieving your client of the conviction.

Mr. Daniel L. O'connor: That's right.

Justice William J. Brennan: That's asking for a lot.

Mr. Daniel L. O'connor: That certainly it is.

It certainly is.

Thank you very much Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Handler.

Argument of Alan B. Handler

Mr. Alan B. Handler: Mr. Chief Justice, may it please the Court.

Because of the relative shortness of time, I would propose to emphasize the argument that the admission of a testimony of the appellants was a violation of due process.

And the course of that argument I would hope to make clear that I think that this Court lacks appellate jurisdiction with respect to the last point --

Justice William J. Brennan: Mr. Handler, why, why waste your time on that clearly if we do?

We may still treat the jurisdictional statement for certainty.

Mr. Alan B. Handler: Yes, and I certainly cannot be dogmatic in saying that it's not an important -- an importance of statute.

Justice William J. Brennan: Well, didn't we postpone jurisdiction on this Court?

Mr. Alan B. Handler: Yes.

Justice William J. Brennan: Well, really you got more if I may suggest to that I think you have more serious question about it --

Mr. Alan B. Handler: Well, this is what I propose to do Mr. Justice Brennan.

Now, of course I can see that the appellant's consider it essential to their argument that the statute 2 (a) 8117.1 be considered as involved.

Justice Byron R. White: Do you?

Mr. Alan B. Handler: I don't think it is involved and I think that the --

Justice Byron R. White: I know but do you think it's critical for their argument to the state?

They may say so but what do you think?

Mr. Alan B. Handler: I think it does color their arguments significantly and I think without --

Justice Byron R. White: Well, --

Mr. Alan B. Handler: Well, without the force and effect of that statute, I think that the Court must then consider whether or not as a factual matter there was coercion and the interrogation such as to vitiate a subsequent testimony.

Justice William J. Brennan: Now, as much as clear, isn't it?

If we agree with them if there was coercion consequent perhaps by reason of the warning that the conviction has to be reversed then obviously the statute can be applied to these two fellows that they did testify, right?

They didn't rely on the privilege?

Mr. Alan B. Handler: That's correct.

Justice William J. Brennan: So, we have to wait until they came when you had a police officer who relied on the privilege and then you discharge them under the statute before we have the course of question of constitutionality statute.

Mr. Alan B. Handler: I would agree with that.

That would be the situation which the constitutionality statute would be involved directly, but the appellants conceived that this statute being on the books was impliedly invoked by the Deputy Attorney General in the course of the interrogation and by that implied invocation of the statute.

The result and testimony was coerced.

Justice Byron R. White: The New Jersey Court ruled the context, is it not?

Mr. Alan B. Handler: The New Jersey Court --

Justice Byron R. White: Statute wasn't invoked or involved.

Mr. Alan B. Handler: That is correct and the New Jersey Court stated in effect that the advice or warning given by the Deputy Attorney General was merely reflective of the intrinsic duty in the laws applicable to police officers.

And I want to point out to the Court that in reading the warnings given by these -- to these various appellants, my adversary of course reads the warning given to Mr. Holroyd and which the Deputy Attorney General says that under a statute he may be subject to removal.

With respect to each of the other appellants, he merely stated that as a police officer under the laws you may be subject to a proceeding to have you removed from office with respect to Mrs. Naglee, now deceased, of course no warning whatsoever was given.

Moreover, more than a year later when the investigation was being conducted by the county prosecutor, the assistant prosecutor didn't mention the possibility of removal at all.

Now, the gist of the case in accordance with the New Jersey Supreme Court's decision is that this advice or this warning was reflective of the law applicable to police officers and as such the warning was reasonable, it was fair and it was accurate.

And therefore will lead to an analysis as to whether if this warning was reflective of the law applicable to police officers whether that law itself is valid and sound and reasonable.

And I don't think there can be any question for this Court and I don't think the appellants so urged that a police officer who was asked to cooperate or testify in the course of an official proceeding relating to his official duties is under a duty to cooperate.

Now, none would quarrel that it is a primary function and duty of a police officer to detect and prevent crime and such detection of course involved disclosure and if a police officer fail to report or disclose the commission of a crime involving third persons everyone would have to agree that this would be a horrendous dereliction of duty.

And it would be equally so if the crime have been committed by a member of a policeman's family.

As a matter of fact recently in the State of New Jersey, we had a situation where a local policeman had to arrest his nephew with respect to a homicide.

And so there is this transcending duty on a part of a police officer to make whole disclosure to detect crime, to report crime.

Is there then a carved out exception with respect to fulfilling this duty when it comes to a police officer himself.

When he himself has been involved or suspected as having been involved in the commission of a crime and of course I think the answer follows that merely because a police officer individually is involved, he is no wise redeemed of his official duty to disclose crime and to cooperate and to testify if this is part of what is necessary to prosecute crime effectively.

Justice Byron R. White: Mr. Handler, then I take it you're distinguishing the police officer from the ordinary citizen who might be interrogated by the police or by the district attorney and hold that now come on you better fellas or we will get you fired and we will follow up you boss then we can pretty well make sure that he won't be working tomorrow and that you (Inaudible) information.

Well, you wouldn't compass that as the (Inaudible)?

Mr. Alan B. Handler: Not at all.

Justice Byron R. White: So, the policeman is different.

Mr. Alan B. Handler: I believe a policeman is different and I --

Justice Byron R. White: If he isn't, why there's coercion?

Mr. Alan B. Handler: If he is not, there is coercion.

Now, I could well anticipate that other public employees may not be similarly situated.

It is conceivable for example that if a state highway maintenance employee is interrogated with respect to gambling or bookmaking or some other type of crime that perhaps the same compulsions or the same duties cannot be super imposed upon him.

It turns on whether or not the duty to cooperate, the duty to disclose crime and once possible implication in crime is an inherent part of the function of the particular public employee.

Now, of course appellants understandably lost over any possible distinction between a police officer and a private citizen and they retreat to the generalities that the Fifth Amendment applies to everybody and therefore it should apply uncritically to everybody regardless of the circumstances and regardless of the context.

I don't think that's so when there are decisions that have held that with respect to grant of particular types of privileges.

There may be as a matter of public policy and reasonably regulation curtailments of constitutional privileges such as the Fifth Amendment and the inquiry is not whether or not this is an encroachment on the Fifth Amendment but whether or not the limitation is in itself reasonable whether it's designed to accomplish a reasonable end.

Justice Hugo L. Black: May I ask you, what you're saying is that policemen can be made -- to give evidence against difficulties of policemen and that would be a reasonable regulation of the Fifth Amendment.

Mr. Alan B. Handler: I don't go quite that far Mr. Justice Black.

I would say that a policeman can be honor a duty to give evidence against himself in a proper proceeding.

But he cannot be --

Justice Hugo L. Black: I guess he's force to give evidence against himself?

Mr. Alan B. Handler: I don't think he can be forced to give such evidence.

I don't think he can be compelled to but I think that the state is not left remedy less against a policeman who fails to perform that duty.

I think a state may remove him from office at the very least.

Justice Byron R. White: Mr. Handler, you really do want to argue the statute here through the course of --

Mr. Alan B. Handler: No, because I feel this that the statute is on the books.

If that statute were construed and applied to literally I concede that we'd have difficulty under the Slochower decision but even in the Lava case cited by my adversary, there was a remand in the Lava case because the New Jersey Supreme Court stated that a teacher could not be dismissed simply for refusing to answer -- to answer questions relating to past communist membership and affiliation that the Slochower decision required the opportunity to be heard and it required a proceeding directed towards the fitness of the teacher to hold the office.

And so, the statute in that sense to the extent there was involved in the Lava case has been given this construction and this interpretation by the New Jersey Supreme Court and of course it is the statute as understood and construed by the state court which is persuasive of this Court's view of the state law.

And in this case itself, the Court stated without particular reference to the statute that a policeman may be subject to removal for refusal to answer question and an official proceeding relating to his official acts but he can only be so removed in an appropriate proceeding with the opportunity to be heard and if it is disclosed as a result of that proceeding that his failure to testify and cooperate just speaks of a want of fitness to be a policeman.

And so, it is of that law which assert is involved in this case.

Justice Hugo L. Black: Well, you don't claim any isn't that the fact of fitness to be a policeman, the policeman claimed to manifest the Fifth Amendment.

Mr. Alan B. Handler: I don't say that categorically but I --

Justice Hugo L. Black: How do you avoid it?

Mr. Alan B. Handler: I say it may be.

Justice Hugo L. Black: Because that's what happened, that's the way it function.

Mr. Alan B. Handler: Well, this Court has held that the mere refusal to testify does not in it of itself give rise to a basis for removal and I don't argue with that articulation.

I think what is germane --

Justice Hugo L. Black: Well, what to be added to it besides the fact that he is a policeman and has refused to convict, to give evidence to convict himself, what's to be added to that?

Mr. Alan B. Handler: Well, --

Justice Hugo L. Black: Any excuse for it?

Mr. Alan B. Handler: They're could conceivably be in excuse for example even in this very proceeding.

The plaintiff of the appellant is not wholly lacking in sympathy.

They were part of a practice which had grown up of ticket fixing which at this particular point in time in the State of New Jersey had become right.

They were not as one reason of record morally reprehensible individuals if they had refused to testify, I would say that their local governing bodies would be well within their discretion in dismissing them but I'm not prepared to say that it would have been abuse of discretion merely to suspend them or to impose some other type of discipline upon them.

Justice Hugo L. Black: They would be within their right as I understand it and dismiss him from service those who had claimed their benefit of the Fifth Amendment.

Mr. Alan B. Handler: In this circumstance, I think so.

They would --

Justice Hugo L. Black: So you get down to the question as to whether the Fifth Amendment means what it says, does it?

Mr. Alan B. Handler: Not necessarily so, not necessarily so because in the situation which you're hypothesizing they have not been required to testify against themselves.

They have invoked the Fifth Amendment and refuse to testify and in a circumstance like that --

Justice Hugo L. Black: Well, why should they when they are kind of between the devil and the deep blue sea?

Mr. Alan B. Handler: Well, if they're not put between the devil and deep blue sea, it means an effect that society is because it would mean --

Justice Hugo L. Black: But the society is handicapped by the Fifth Amendment.

Mr. Alan B. Handler: But I don't think that's a sweet in effect of the Fifth Amendment.

I don't think that the Fifth Amendment would require that society continue in public employment, a policeman who was unwilling to cooperate in an investigation relating to his own possible criminal activities just as it seem to make sense.

Chief Justice Earl Warren: Mr. Handler, are we -- do we have to find out in this case whether any one was legally discharged or not or do we have to find out merely that evidence taken from him in what they said to be compulsory manner here is properly introduced in the criminal proceeding against him?

Mr. Alan B. Handler: I think that that is basically the only issue.

Chief Justice Earl Warren: That is the only issue?

Mr. Alan B. Handler: Involved.

The -- in point of fact, this is extra record, I think three of these appellants have been dismissed I think in another municipality they are merely suspended from the force but they're holding other public jobs pending the outcome of the appeal but I don't think that that is involved in this case.

Chief Justice Earl Warren: The only question is, was there coercion in getting these statements from these police officers and therefore were they voluntary statements that could be introduced in the trial against him.

Mr. Alan B. Handler: That is the way I see the issue in this case.

That is so main issue in the case and --

Justice Hugo L. Black: And precisely how were they obtained?

Just precisely how they give them?

Mr. Alan B. Handler: I think that the appellants volunteered them.

Justice Hugo L. Black: I'm not talking about conclusion.

Tell me what happened.

Mr. Alan B. Handler: Factually, this is what happened.

Shortly, prior to the order of the New Jersey Supreme Court requiring an investigation an official or an officer of the office of the administrative director as a result of an audit made in these municipalities reported to the Supreme Court the apparent irregularities in the handling of municipal motor vehicle tickets.

Justice William J. Brennan: How long we've been doing that?

Mr. Alan B. Handler: I think --

Justice William J. Brennan: Twenty-five years?

Mr. Alan B. Handler: Many, many years this has been a function long exercise by the New Jersey Supreme Court.

As a result of this, the New Jersey Supreme Court ordered the Attorney General to conduct an investigation into these alleged irregularities.

A deputy Attorney General was deputized or directed by the Attorney General to conduct the investigation.

He communicated with each of these appellants, setup dates for hearings and examinations.

He had the same time had other investigations conducted in these municipalities.

Three of the appellants I want to point out had counsel.

One of the other appellants, Chief Garrity indicated he had counsel but didn't want to bring him along because he didn't think it was necessary.

The Deputy Attorney General went down to the municipalities.

He set up the hearings and the hearings were conducted.

And a course of the hearings preliminarily, he advised them very clearly that the purpose of the investigation was into the alleged irregularities in the handling of tickets.

Justice Hugo L. Black: Where they doing it?

Mr. Alan B. Handler: He didn't say specifically for their doing it but I think it's reasonably clear that each of them knew he was involved.

It was after all the interrogation of the police officers who had issued the tickets, who had acted as violations clerk on a part-time basis, the chief of police in one of the municipalities and the --

Justice Hugo L. Black: I'll get down to the point now where he told them under the law that they testified, it could be used against them to convict them.

Mr. Alan B. Handler: Yes.

Justice Hugo L. Black: And would be?

Mr. Alan B. Handler: He didn't say it would be but he made a quite clear that their testimony could be used against them or any other person in a subsequent criminal proceeding and this --

Justice Hugo L. Black: And that they would lose their job?

Mr. Alan B. Handler: He told them that if they refuse to testify as police officers they may be subject to proceedings --

Justice Hugo L. Black: Testify as police officers, they testified as human being.

Mr. Alan B. Handler: Well, that's true but they also were being interrogated in connection with the alleged commission of crime within their jurisdiction and as --

Justice Hugo L. Black: And their alleged conviction of crime?

Mr. Alan B. Handler: Yes.

Yes.

And the advice to them was that as police officers they might be subject to removal proceedings if they refuse to testify.

Now, it's our position --

Justice Hugo L. Black: What's the difference in that in saying if -- except in the enormity of the -- of what's done, you can be whipped if you don't do this and that's what to be done.

Mr. Alan B. Handler: I think there's a great deal of difference.

Justice Hugo L. Black: A great deal of difference is the degree.

It was the difference in the compulsion.

Mr. Alan B. Handler: Well, --

Justice Hugo L. Black: His job was at stake?

Mr. Alan B. Handler: I feel this that the advice given to these appellants was no more no less than what they were subject to them, and what they were obligated to do as policemen and --

Justice Hugo L. Black: To obligate to do it but for the facts of the Fifth Amendment.

Mr. Alan B. Handler: Well, of course you assume your conclusion by saying that a priority that Fifth Amendment prevents the discharge of this duty.

Justice Hugo L. Black: No.

But suppose for the matter of protection around them so that they can't force them to give evidence against themselves.

Mr. Alan B. Handler: But I don't --

Justice Hugo L. Black: By threatening him with something like loss of a job.

Mr. Alan B. Handler: If the threat has no grounding in law or in policy then the Fifth Amendment does act as a foreign.

But if a man is under a legal duty to cooperate and to testify by virtue of his --

Justice Hugo L. Black: Again, he's beyond the legal duty of the Fifth Amendment says, he can't be compelled to be a witness against himself.

Mr. Alan B. Handler: I think he can.

Justice Hugo L. Black: You think he can?

Mr. Alan B. Handler: I think he can because it is his decision to make.

He can still invoke the Fifth Amendment and state I am not going to testify.

Justice Hugo L. Black: How about their job?

Mr. Alan B. Handler: But he may lose his job.

Now, appellants argued that this is nothing more nor less than to arrest.

They're between the rock and the whirlpool, the devil and the deep blue --

Justice William J. Brennan: Well, Mr. Handler I think you answered Justice White before that where this individual is not police officer at the time of that interrogation but private citizens, there will be no question that there was that kind of coercion exercise could violated the privilege?

Mr. Alan B. Handler: Yes.

Justice William J. Brennan: So, your whole case has to depend on a distinction between a police officer and a private citizen, does it?

Mr. Alan B. Handler: Yes.

Yes, it does in my mind and I don't go so far as to say that what we argued with respect to a police officer would necessarily apply to every type of public employee.

This, I don't know but a police --

Justice Abe Fortas: Did you say in response to Mr. Justice Brennan some time ago that you did not make any point out of a procedural posture of this case so there's to say that it does not come here with -- on the dismissal for refusal to testify that the case comes here and posture where the police officers have been discharged upon a calendar conviction?

Mr. Alan B. Handler: I don't think the question of discharges is pertinent Mr. Justice Fortas because in point of fact there's nothing in the record to indicate what the status of these appellants is in each of their municipalities.

I think that some are still holding some public --

Justice William J. Brennan: Well, anyway the only judgment before us that judgment of criminal conviction.

Mr. Alan B. Handler: Judgments of conviction.

Justice Abe Fortas: Well, that's what bothers me because the essential proposition here may be that the mere existence of the statute invalidates the testimony given and makes that testimony of course --

Mr. Alan B. Handler: Well, this argument of course has been tendered.

I don't subscribe to look because I don't agree with the interpretation of the statute given by appellants.

The statute has been interpreted by the State of New Jersey in the Lava case and in this case, and the Court of New Jersey makes it very clear that this statute cannot be invoked except within the perimeter of Slochower.

In other words, they cannot be an automatic or mandatory forfeiture.

There must be a hearing relating to fitness for office.

I also pointed out in my brief that that there is another statute in New Jersey NJSA 40:69 (a) 167 which provides that failure to testify may be grounds for removal on the part of a municipal body in its discretion.

Now, that of course is applicable with respect to municipalities that under that particular form of government but it is not the policy of the State of New Jersey that there can be automatic mandatory dismissal upon the bare invocation of the Fifth Amendment on a part of a public employee.

Justice Abe Fortas: So, there is a direct conflict between your position and that stated by Mr. O'Connor in that respect?

Mr. Alan B. Handler: Yes, it's --

Justice Abe Fortas: Conflict with respect to New Jersey law?

Mr. Alan B. Handler: Yes.

Mr. O'Connor with all due respects keeps harking back to the statute as literally written without a sensible appreciation for the manner in which that statute has been construed and the manner in which the New Jersey Supreme Court in this case has articulated the law of discharge with respect to police officers.

Justice Abe Fortas: So, I suppose you would argue that even if the -- an absolute mandatory statute would be considered as -- might be considered as of course that where the invocation of the statute requires a hearing and the application of other standards that the case may be different?

Mr. Alan B. Handler: I think it would be different and I think that is that this case because each appellant was surprised clearly that he might be subject to removal not that he would be removed.

Justice Hugo L. Black: What do you mean would be different?

I don't quite understand.

You mean that by having a hearing you could quote him to give evidence to get (Inaudible)?

Would it be the opposite if you didn't have a hearing?

Mr. Alan B. Handler: No, I think at a hearing he would be forced to in response to questions to disclose the circumstances and the basis upon which he's refusing to testify.

I think he could urge that the questions put to him were not reasonably related to his qualifications for office such as remote membership in the communist party and things like that.

I think that's what would be the basis of a disciplinary hearing but --

Justice Byron R. White: Mr. Handler, I gather that if the police should be required to answer question putting in by the district attorney whereas an ordinary citizen wouldn't, why couldn't policeman be called to testify at his criminal trial although the ordinary citizens would not be held?

Mr. Alan B. Handler: I think he could be called to testify, I don't think he could be compelled to testify if for example you had a situation where a defendant police officer was called to the stand and he invoked the Fifth Amendment this might raise an interesting point as to whether he would be subject to disciplinary removal for failing to testify in the course of a trial and I think an argument could be made that that result could obtain.

I think it could obtain if he was called to testify before a grand jury as oppose to this type of investigation.

Chief Justice Earl Warren: Mr. Handler, may I ask you this?

Is it your position that any time a policeman for instance is charged with a crime that he may also be simultaneously charged with or having an investigation in the department of his conduct and they immediately have a hearing on his conduct and he says that he's going to have a criminal -- he's got this criminal case against him and he claims the Fifth Amendment that you could then discharge him for not testifying before this hearing and leaving without a job when he's tried for his crime?

Mr. Alan B. Handler: Assuming that there would be independent evidence upon which to proceed with his criminal trial.

Yes, I think so and as a matter of fact many of the cases which constitute the literature in this field concerning the discharge of public employees and police officers in particular involved proceedings before a Civil Service Commission or another governmental agency having jurisdiction over employment where the refusal to testify is made in the course of the disciplinary proceeding and it's predicated on the Fifth Amendment.

I think the Callahan case is one example of that type of proceeding.

Chief Justice Earl Warren: When you say that wouldn't apply to all kinds of employees, what kind of employees would it not apply to?

Mr. Alan B. Handler: Well, I gave as an example of possible non-applicability the highway maintenance employee will feels potholes on a public road.

I'm not certain that he has a duty as a part of his official position to detect and prevent crime as does a policeman and this type of proceedings and this type of warning with respect to an employee such as that may not be proper.

Chief Justice Earl Warren: But who would determine what employees would come under and what wouldn't?

Mr. Alan B. Handler: Well, I think that would be --

Chief Justice Earl Warren: -- that would be on an ad hoc basis?

Mr. Alan B. Handler: Well, it would probably be under statutes and civil service regulations which generally permit dismissal for conduct unbecoming employees, dishonorable conduct and standard such as that which I'm sure most states have.

Justice Hugo L. Black: To what kind of employees has it already been applied?

Mr. Alan B. Handler: I'm --

Justice Hugo L. Black: Give us the details of one of them.

Mr. Alan B. Handler: Well, the -- I'm not certain that this statute was specifically applied in the teacher cases in New Jersey, Lava and Lowenstein because there was a statute under Title 18 which is the Education Act which permitted dismissal of teachers for conduct unbecoming.

And it was their failure to testify which invoked those statutes and even in the Fram (ph) case cited in our brief where there was a loss of a pension.

There was the pension statute that provided for forfeiture of pension rights for --

Justice Hugo L. Black: Because they didn't testify against themselves?

Mr. Alan B. Handler: No.

No.

There was merely the general standards that there could be a lost of pension rights for dishonorable service and the question was raised as to whether or not fade, well, in that case to be accurate.

There was a conviction for ticket fixing and --

Justice Hugo L. Black: Convictions of what?

Mr. Alan B. Handler: For ticket fixing in the Fram (ph) case cited in our brief and I was held to be dishonorable service and resulted in a loss of a state pension.

Justice Hugo L. Black: And was the person asked about it?

Mr. Alan B. Handler: Excuse me.

Justice Hugo L. Black: Was the person asked about it?

Mr. Alan B. Handler: I'm not certain in that case whether there was independent evidence.

I will rely on our brief with respect to the other issues.

Justice William J. Brennan: May I just add one last question if I may?

Does this conviction stand or fall on the evidence they got from police?

Mr. Alan B. Handler: We did not argue the point of independent substantial evidence.

Justice William J. Brennan: But was there other independent issue?

Mr. Alan B. Handler: Yes.

I want to point out that the printed appendix or the printed record does not constitute the entire record that was before New Jersey's --

Justice William J. Brennan: Well, in any event it could be a new trial I gather because he would not have to rely on this testimony that fell, is that it?

Mr. Alan B. Handler: I frankly have not evaluated the other testimony that would permit me to reach your conclusion.

Featured:

Mills v. Alabama - Oral Argument

Wed, 22 Aug 2012 16:56:14 +0000

Case:

Mills v. Alabama

Media File:

597_19660419-argument.mp3

Related Transcript:

597_19660419-argument

Transcript:

Argument of Alfred Swedlaw

Chief Justice Earl Warren: Number 597, James E. Mills, Appellant, versus Alabama.

Mr. Perrine.

Mr. Alfred Swedlaw: Mr. Chief Justice, may it please the Court.

I'm Alfred Swedlaw.

Chief Justice Earl Warren: Yes, there are two counsels here.

Mr. Alfred Swedlaw: Yes sir.

Chief Justice Earl Warren: Yes.

Mr. Swedlaw, you may proceed with your argument.

Mr. Alfred Swedlaw: Thank you, sir, we are both of Birmingham.

Mr. Perrine, my colleague and I, are appearing on behalf of the appellant, Mr. James E.Mills.

Chief Justice Earl Warren: Yes.

Mr. Alfred Swedlaw: This case concerns Section 285 of the Alabama Corrupt Practices Act, regulating election practices.

And specifically, that portion of the Act which provides as follows.

It is a corrupt practice for any person on election day to do any electioneering or to solicit any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on, on the day on which the election affecting such candidates or propositions is being held.

Mr. Mills is editor of the Birmingham Post-Herald, a morning newspaper published daily in Birmingham, Alabama, and distributed throughout the State of Alabama.

The circulation of this paper is approximately 85,000 as being the second largest newspaper in the State.

Justice Potter Stewart: It's the only morning paper in Birmingham?

Mr. Alfred Swedlaw: Yes, sir.

There's an afternoon paper, the sister paper of the Birmingham Post, it's the Birmingham News and it has a circulation of approximately 130,000, I think Your Honor.

Justice Potter Stewart: And this is the only morning newspaper?

Mr. Alfred Swedlaw: This is the only morning newspaper.

On November 6 of 1962, a municipal election was held in Birmingham to determine whether the existing commission form of city government would be retained or would be replaced by the so-called mayor-council form.

Mr. Mills authored an editorial which was published on election day in his newspaper.

The editorial appears in full on page 25 of the record and as Appendix K on page 35 of the appellant's brief.

In this editorial, Mr. Mills criticized the then mayor of Birmingham for promising pay raises to city employees and for saying that he would instruct city employees to neither give out news to nor discuss with reporters of the Birmingham Post-Herald, or its sister paper, the Birmingham News, any public business.

The Mills editorial stated that the proposed pay raises were -- was another good reason why the voter should vote overwhelmingly today in favor of mayor-council government.

As to the news blackout threatened by the mayor, the editorial comment was, if Mayor Hanes displays such arrogant disregard of the public right to know on the eve of election, what can we expect in the future if the city commission should be retained.

Birmingham and the people of Birmingham deserve a better break.

A vote for mayor-council government will give it to them.

The publication of this editorial marked the beginning of the chain of events ultimately leading to our appearance here this morning.

A criminal complaint was filed against Mr. Mills on November the 13th, 1962 issued from the Jefferson County Criminal Court charging Mills, head by the editorial in question.

Electioneered or solicited votes on election day in contravention of Section 285 of the Alabama Corrupt Practices Act.

If guilty of this misdemeanor as charged, Mr. Mills is subject to a fine of not more than $500 and he may also be imprisoned in the county jail or sentenced at hard labor for six months, but not more than six months on behalf of the county.

Demurrers to the complaint were filed on Mills' behalf, testing the constitutionality of the statute as applied to the editorial on both the Alabama and the federal constitutions.

The lower court -- the criminal court sustained these demurrers thereby, in effect, declaring the statute as applied unconstitutional.

Justice William J. Brennan: May I ask, Mr. Swedlaw, is this directly involved to do any electioneering or to solicit any votes?

Mr. Alfred Swedlaw: Yes sir.

Justice William J. Brennan: Is that all?

I mean just that much?

Mr. Alfred Swedlaw: Yes sir, that's all.

Justice William J. Brennan: -- any electioneering or to solicit any votes.

Mr. Alfred Swedlaw: On election day, yes sir.

Justice William J. Brennan: I see.

Mr. Alfred Swedlaw: The statute having been declared unconstitutional, as provided by Alabama procedure, the State appealed directly to the Supreme Court of Alabama.

Reversing the judgment of the trial court, the Supreme Court of Alabama held that Section 285 clearly applied to the Mills editorial and that the statute as applied was constitutional under the police powers for the State of Alabama.

The order of the court remanded the case to the trial court.

We filed a timely application on behalf of Mr. Mills and this was overruled by the Alabama Supreme Court.

Mills then appealed to the Supreme Court of the United States and this Court by its order of December the 6th, 1965, postponed jurisdiction for further consideration to the hearing of the case on its merits.

Under those circumstances, we will address ourselves first to the question of this Court's jurisdiction, if it please the Court.

The jurisdictional issue in this case arises because on its phase, the judgment of the Alabama Supreme Court does not necessarily conclude the litigation between the State of Alabama and Mr. Mills.

Alabama procedure would permit Mills on an actual trial of the case below to interpose defenses other than the unconstitutionality of the statute in question.

In reality, however, Mills has no other defense either in fact or in law to the charge against him.

He freely concedes that he wrote the editorial complained of and caused it to be published on election day.

And the Alabama Supreme Court specifically held that this constituted a violation of the statute and the statute as thus applied is constitutional.

Therefore, may it please the Court, the federal question, that is the constitutionality or not of the Alabama statute is the only question remaining in this case.

There is nothing more to be decided.

Under these circumstances, the decision of the Alabama Supreme Court constituted a final judgment for the purposes of Title 28 U.S.C. Section 1257.

In the case of Pope versus Atlantic Coast Line Railroad Company which was decided by this Court in 1953, a railroad employee invoking the Federal Employers Liability Act sued his employee -- employer for injury sustained in the course of employment.

The injuries occurred in Georgia but the employee sued in the Alabama courts and the railroad filed a proceeding to restrain the Alabama action.

The trial court sustained the general demurrer which raised the provisions of the federal statute as a bar for the power of the Georgia Court to issue the injunction.

The Georgia Supreme Court reversed the trial court's order and the employee appeal to the Supreme Court of the United States.

As an out case, the jurisdictional question in Pope was whether or not the judgment of the Georgia Supreme Court was final.

The Supreme Court held that it was a final judgment because the issue was right for adjudication.

There is Hill.

The petitioner conceded that he had no other defense in opposed and that his case rested upon his claim under the federal statute and nothing else.

Justice Abe Fortas: Does that mean that you do conceive that the publication of this editorial constituted electioneering or the solicitation of votes on election day?

Mr. Alfred Swedlaw: The Alabama Supreme Court, Judge Fortas, has so construed it and --

Justice Abe Fortas: And you -- you don't dispute that and you represent to us that if you went back to trial, you would not dispute that.

Mr. Alfred Swedlaw: Your Honor, we disputed it initially in the court below but the application of the statute by the Alabama Supreme Court is a binding construction of it and binding on this Court, may I suggest, to the same effect as though it were written into the statute.

Justice Abe Fortas: And to the same effect as if that conclusion we arrived at, at the trial?

Mr. Alfred Swedlaw: Yes sir.

Yes sir.

This is correct.

Justice Potter Stewart: You had your day in the court on that and it's been decided against you (Voice Overlap) at the end of it.

Mr. Alfred Swedlaw: Yes sir.

Justice Potter Stewart: And you're stuck with it and without reading, and as you suggest, we're stuck with that reading.

Mr. Alfred Swedlaw: Exactly, Your Honor.

Justice John M. Harlan: Suppose at the opening of the trial say that (Inaudible).

Mr. Alfred Swedlaw: I didn't quite understand you, Justice Harlan.

Justice John M. Harlan: (Inaudible) defendant trial on the ground that you didn't know the contents of the editorial.

Mr. Alfred Swedlaw: Oh yes sir, we can then oppose that, but this is not the fact where you (Voice Overlap) --

Justice Potter Stewart: The defendant wrote the editorial.

Mr. Alfred Swedlaw: The defendant authored the editorial.

Mr. Mills, the defendant, the appellant in this case authored the editorial and caused it to be published.

So in truth, we have no further defense.

Justice Byron R. White: Well, I suppose -- if you lose here, what will you do?Plead guilty?

Mr. Alfred Swedlaw: Justice White --

Justice Byron R. White: You've already been convicted.

Mr. Alfred Swedlaw: We have not been convicted.

There has been no trial.

Justice Byron R. White: That's right.

Now, would you plead guilty or not?

Mr. Alfred Swedlaw: Oh yes sir, we would plea -- we would have no alternative, there's no defense.

Justice Byron R. White: Well, can the jury -- is the jury -- you have a jury trial if you wanted to.

Mr. Alfred Swedlaw: Well, we wouldn't have a jury trial and the initial procedure would be without a jury in the Jefferson County Criminal Court if we lost there in order to work our way back up to where we are today, we would go to the -- to the Circuit Court and there we could demand a trial by jury.

Justice Byron R. White: That's a de novo?

Mr. Alfred Swedlaw: Yes sir, there would be a de novo procedure and losing there, we would then be permitted to appeal to the Court of Appeals and losing there to the Supreme Court of Alabama --

Justice Byron R. White: But what if --

Mr. Alfred Swedlaw: -- and losing there to the Supreme Court of United States.

Justice Byron R. White: Did the jury find you not guilty if you -- if you just went to trial and offered no defense?

Mr. Alfred Swedlaw: I suppose that they -- that they could Your Honor.

It would be set aside in --

Justice Byron R. White: What do they do, just judge the facts in Alabama or do they judge the law too?

Mr. Alfred Swedlaw: They judge the facts only and jury tries the facts.

There is no way from a practical standpoint, Justice White.

There's nothing that we can do that we are not now doing.

And this is -- this is our plea as to the finality of the Supreme Court of Alabama's judgment.

Justice Abe Fortas: But you didn't --

Justice William J. Brennan: It is conceivable, I suppose, juries in face of no defense with acquitted people in other situations, I suppose the jury in Circuit Court could acquit.

Mr. Alfred Swedlaw: Yes sir, I suppose that the jury could acquit.

Justice Byron R. White: And Pope, in carrying those cases, really went on the ground that -- that the state court that -- the court that tried the case had no jurisdiction to try it.

Mr. Alfred Swedlaw: No sir, the Pope case, Justice White, went on the -- went on the theory that the judgment was final even though it was a demurrer and that the case was right --

Justice Byron R. White: Well, I know.

Mr. Alfred Swedlaw: -- for adjudication.

Now --

Justice Byron R. White: Right, it was right with adjudication because the Court purported to give the adjudication really shouldn't have given them at all.

Mr. Alfred Swedlaw: I think not, if it please the Court, that the case it followed in 1963, the Curry case --

Justice Byron R. White: That's right.

Mr. Alfred Swedlaw: -- went off on the question, initially, the main rationale of the decision was the power of the Georgia Court --

Justice Byron R. White: Georgia Court has no power.

Mr. Alfred Swedlaw: -- to act.

But it's an alternative -- it's an alternate basis of decision in the Curry case, the Court cited Pope and relied on Pope which was apart completely from the question of the jurisdiction to act, power as I understand it.

The Pope --

Justice Byron R. White: You're most completely on the Pope approach.

Mr. Alfred Swedlaw: Oh, yes sir and the alternate basis of opinion in Curry.

And I think in Richfield which preceded the Pope case.

Justice Byron R. White: But you also -- as I read your brief, you also rely on not because on its facts the same on Dombrowski notion that this is a First Amendment problem and in that sense that even if these were not a final judgment for purposes of our review, it may be decided.

Mr. Alfred Swedlaw: We think -- we think this is very true and a very cogent reason.

The Dombrowski case of course involved the question of -- the doctrine of abstention.

But the analogy is certainly clear.

We feel that Mr. Mills should not be subjected to a criminal prosecution and conviction in order to obtain a declaration of his constitutional rights.

This matter has -- it began in 1962 of November, some two and a half years have already elapsed since that time and we are now after that long delay here in the Supreme Court.

If we are compelled to go back to the Alabama courts and went our way through the torturous appellate procedure to get back here, it would be anticipated that another two or two and a half years would expire.

Justice William J. Brennan: Would you -- was the First Amendment argument addressed in the -- addressed in the Alabama Supreme Court instead?

Mr. Alfred Swedlaw: Yes sir.

Justice William J. Brennan: And it was rejected without merit?

Mr. Alfred Swedlaw: Yes sir.

Justice William J. Brennan: So that at least we have a determination.

Mr. Alfred Swedlaw: We have a firm determination by the Alabama Supreme Court that this is a reasonable exercise of Alabama's police power.

Justice Hugo L. Black: What you presented that -- in relation on that is whether not having them to finally determine that he would be guilty as he's tried and had to be found guilty but you don't want to be sent back down there just to proceed up and when you went through the various courts.

Mr. Alfred Swedlaw: Exactly, Justice Black.

We feel that not only -- not only would this be an intolerable situation insofar as the appellant is concerned but there are other rights besides those of Mr. Mills here involved as in the Dombrowski case.

The question of the effect that the Supreme Court's decision has had on First Amendment rights in Alabama must be considered.

The broad sweep of the Alabama Corrupt Practices Act to encompass an editorial has necessarily in the words of Dombrowski had a “chilling effect”, if you please, on the Alabama press generally.

The blanket of silence which has descended upon the press of Alabama each election day since the arrest of Mr. Mills continues to insulate the people of Alabama from editorial comment and press information to which we feel they are entitled and that they're entitled to this without restraint.

Justice Abe Fortas: Are you making any distinction between something that's published in a newspaper and something that is published in a pamphlet and distributed --

Mr. Alfred Swedlaw: No sir --

Justice Abe Fortas: Let's suppose at some -- the Chamber -- the local Chamber of Commerce turned up exactly the same editorial, it is to every word exactly the same.

But instead of putting it in a newspaper, the Chamber of Commerce had distributed it on election day.

Now, you say we're bound to regard the editorial as electioneering or solicitation of votes.

And the pamphlet in the example I'm putting to you would the electioneering or soliciting of votes that both occur on election day.

Are you asking us to draw a distinction between two things on the grounds that one was a newspaper and the other was just a handout?

Mr. Alfred Swedlaw: No, Justice Fortas.

We think that the First Amendment applies equally to any form of expression be a newspaper or a Chamber of Commerce publication, or the handing out of pamphlets.

Justice Abe Fortas: How about a speech --

Mr. Alfred Swedlaw: Or a speech why --

Justice Abe Fortas: -- on election day?

Mr. Alfred Swedlaw: Yes, and we see no distinction that there is no --

Justice Abe Fortas: Do you think that the rule which I guess is quite prevalent in the United States dropping the curtain on election activities on election day.

Do you think that that -- that that rule prohibiting electioneering on election day is unconstitutional?

Mr. Alfred Swedlaw: Yes sir.

And with reference to --

Justice Abe Fortas: Whatever form of electioneering may take?

Mr. Alfred Swedlaw: Whatever form the electioneering may take.

We see no legitimate legislative purpose in this sought of restraint.

This is not a case of a man being prosecuted for standing within 20 or 30 feet of an election booth and blocking or harassing people coming to vote.

This is not a regulation of conduct.

This is a regulation of speech.

And we see no legitimate interest for the State of Alabama in such restraint.

In fact, we -- it's our contention that the public interest lies completely in the other direction.

Not in the direction of curtailing expression but in the direction of giving full vent to public expression concerning matters of general interest and public interest elections particularly.

Now, as far as the construction of the statute being binding on this Court irrespective of the -- when it's emanated -- the expression emanated, it is binding on this Court, the Alabama Supreme Court's application of it.

This was decided in Herndon versus Lowry, in the Terminiello case just to the same effect as though -- the statute had said that no editorial shall be written or published on election day.

Justice Abe Fortas: I understand that but the usual defense, I suppose, of these statutes prohibiting electioneering on election day is that they avoid disorder on election day --

Mr. Alfred Swedlaw: Yes sir.

Justice Abe Fortas: -- number one, and number two, they reduce the possibility that somebody will make a last minute sensational announcement that would panic people and which may not be true.

Mr. Alfred Swedlaw: May I -- we're getting into the merits of our case which is perfectly --

Justice Abe Fortas: I beg your pardon.

Mr. Alfred Swedlaw: -- satisfactory, and I should -- I would be happy to pursue this argument further.

No sir, the two rather blur together the question of jurisdiction and the merits of our case are rather intermingle, but you're absolutely correct.

Justice Hugo L. Black: I suppose that they can make it illegal for a candidate to hire a host and make a speech on election day, there's no reason why they couldn't make it as a crime for him to make a speech five days before election day, it's the only ground that they didn't want to make that late.

Mr. Alfred Swedlaw: Well the only justification, Justice Black was the Supreme Court of Alabama gave for this statute is a -- and I think I'm quoting directly, a salutary enactment designed to prevent last minute charges and countercharges.

Now --

Justice Hugo L. Black: Did they say they hope to do that?

Mr. Alfred Swedlaw: The futility of this reasoning is apparent, may it please the Court.

You don't prevent last minute charges and countercharges, be the deadline election day or 30 days, or 60 days or 90 days before election day.

Someone always has the last word before time runs out.

Justice Hugo L. Black: Would you be attacking the statute if it had been construed this meaning if he couldn't go down to poll and stand there and beg voters and have 40 people standing and beg voters to move one way or another.

Mr. Alfred Swedlaw: No sir, we concede readily that the Alabama Corrupt Practices Act does have a valid sphere of operation.

We certainly think that the restriction as to place would be appropriate, prevent the actual harassment of a voter.

Justice Byron R. White: Why is that?

Mr. Alfred Swedlaw: Possibly because, Your Honor, that there are certain interest that the State has in -- and oddly that is a -- an election is not disturbed by breach of peace by the State.

By a criminal offense, we don't argue that the -- that the right of free speech or free press is an (Voice Overlap) absolutely right.

Justice Byron R. White: If you could just do your breach of peace statute to prevent those.

Mr. Alfred Swedlaw: Possibly, this would be the equivalent.

This would be the equivalent, be convicted -- conviction on misdemeanor.

We argue for a complete and absolute right to question.

Justice William J. Brennan: Well, but suppose this statute, instead of reading as it does, there's no limitation, it just says, it's a crime to do any electioneering or to solicit any votes.

Suppose it said it's a crime to do any electioneering or to solicit any votes on election day within an area of 100 feet of any poll area.

Mr. Alfred Swedlaw: We think that that would -- that would lend the validity.

We tend to make this that extensive.

Justice Byron R. White: Why should it be permissible for the state to say like, “You can't stand within 100 feet from the poll place”, and --

Mr. Alfred Swedlaw: Oh, possibly --

Justice Byron R. White: -- and individually ask people to vote for me if I'm running and -- or to vote for my friend who is running --

Mr. Alfred Swedlaw: I see.

Justice Byron R. White: -- in order to -- and yet the newspaper should be able to write an editorial and sell it off the newsstand --

Mr. Alfred Swedlaw: Because --

Justice Byron R. White: -- off the newsstand 101 feet away.

Mr. Alfred Swedlaw: Because when you're -- may it please, Your Honor, it involves something physical.

It involves conduct.

It's not a limitation on the expression.

An analogy for example was in the Schneider case, I think it was, various statutes prohibiting --

Justice William J. Brennan: Well, it's quite a bit of conduct involved in public newspapers.

Mr. Alfred Swedlaw: But not restraining, not a physical -- not a physical blocking of a polling place.

Justice Byron R. White: There's no blocking here used at all.

You just talk to your friend (Voice Overlap).

Mr. Alfred Swedlaw: I would argue most vehemently with you but this should not be tolerated, that this would be an unwarranted restriction.

I would -- this would --

Justice Byron R. White: What?

Within 100 feet?

Mr. Alfred Swedlaw: With 100 feet, I don't think there's any magic of 100 feet.

Justice Byron R. White: Well, or any other places as long as there wasn't a breach of the peace (Voice Overlap) brought in this title.

Mr. Alfred Swedlaw: I'm incomplete in terms, Your Honor.(Voice Overlap)

Justice Abe Fortas: You mean in your part?

Mr. Alfred Swedlaw: But I don't have to go that far here.

Justice Abe Fortas: You mean you think it would be a violation of the First Amendment for a state or municipality to provide that you can't get any electioneering within 100 feet of the voting place.

Is that your position?

Mr. Alfred Swedlaw: That it would be unconstitutional?

Justice Abe Fortas: Yes.

Mr. Alfred Swedlaw: I would take that position.

I don't think that we have to go nearly that far in this case, however, Your Honor.

Justice Abe Fortas: How about in the place where the voting takes place?

Mr. Alfred Swedlaw: Unless there is a breach of the peace -- unless there is a clear and present danger to use the classic test, a clear and present danger of -- to the public interest, I feel that there should be no limitation or restriction on freedom of expression be at newspaper or otherwise.

Justice Hugo L. Black: Do you think a man should have the right to say anything he wants to, anytime he wants to at anyplace he wants to in respect of the fact that the State might want the street be used for some other purpose?

Mr. Alfred Swedlaw: Yes sir.

Yes sir.

Justice Hugo L. Black: Do you think they have the right to go anywhere they want and say anything they please --

Mr. Alfred Swedlaw: If the --

Justice Hugo L. Black: -- even if the city tries to keep certain streets, they're not going to have you on why it shouldn't have been done?

Mr. Alfred Swedlaw: If they're not blocking traffic, creating hazards to the public peace, creating traffic conditions that might result in danger to the public --

Justice Hugo L. Black: Do we have to go that far to decide it with you the other day?

Mr. Alfred Swedlaw: No sir, you do not.

There is --

Justice Hugo L. Black: No.

Mr. Alfred Swedlaw: -- there is no such a question involved in our case, may it please the Court.

Justice Abe Fortas: The alternative though would be to say to withdraw a line of what is an unreasonable restraint, isn't that right?

Mr. Alfred Swedlaw: I don't think so --

Justice Abe Fortas: And then you're going to say that -- and your argument would be that this is an unreasonable that preventing electioneering on the day before -- or election day is unreasonable, do you have in your brief -- I've forgotten, any indication of how widespread such statutes and ordinances are?

Mr. Alfred Swedlaw: There are numerous statutes -- Corrupt Practices Act are numerous.

Justice Abe Fortas: I don't mean Corrupt Practices Act.

I mean this specific type of provision.

Mr. Alfred Swedlaw: It says you shall not publish a newspaper editorial?

Justice Abe Fortas: Where it says you can't electioneer on election day.

Mr. Alfred Swedlaw: I do not know how general that specific provision is, Your Honor.

Justice Potter Stewart: That is in one of the briefs, isn't it?

There's some little (Voice Overlap) of the statutes.

Mr. Alfred Swedlaw: There are acts of this nature but their exact content -- there has been no construction.

We know this but we have found no cases bearing on that point.

Justice William J. Brennan: I suppose Mr. Swedlaw under this statute as it's written, if this editorial had appeared -- that this very editorial had appeared in Montgomery newspaper on Birmingham's election day, now, the author of the Montgomery --

Mr. Alfred Swedlaw: Yes.

Justice William J. Brennan: -- editorial would have been subject to prosecution --

Mr. Alfred Swedlaw: That is correct.

Justice William J. Brennan: -- even though it deals with the Birmingham election.

Mr. Alfred Swedlaw: Yes sir, this is true.

We feel that -- as I've said in the Schneider case trying to regulate the distribution of pamphlets on public streets under the guise of this being a regulation that would keep the street from being littered.

And this statute was struck down under the guise of regulating conduct, those statutes regulated free expression.

Now, that's exactly what is happening in the Alabama statute.

It would be only of small step from the Alabama Supreme Court's decision in the Mills case to say -- well, for a benevolent legislature to say well it would be in the interest of the public, we think, in this -- in times of trouble and stress such as we are now enduring, it would be in the public interest that there'd be some surcease, some respite from all of these tension, all of the bad news.

And therefore, let's say that only on Monday, Wednesday, and Friday, we'll have no editorial appear in newspapers, we'll have no television, news broadcast of any sort because the people are entitled to this sort of euphoric atmosphere in which their tranquility is undisturbed.

This is the danger of the Mills case that's decided by Supreme Court of Alabama.

This is speech control.

If you will, this is thought control.

If I may just take a moment and quote from the Mills' opinion to give the Court an idea of what was here involved.

This Court, this is the Alabama Supreme Court.

This Court holds in accordance with the great weight of authority that a law cannot be held to be invalid because unreasonable unless and until it appears beyond reasonable controversy that it necessarily impairs to the point of practical destruction, a right safeguarded by the Constitution.

As it already has been pointed out, the law under consideration lies within the police power field and impairs, and please listen -- and impairs only the right of free expression.

Now, by whatever theory or by whatever rationale this decision is tested, we think that the Alabama statute as applied to Mr. Mills was faux.

The Alabama Supreme Court and this is fundamentally objectionable, is that -- is the assumption by the Court that the State has the power to provide the voters of Alabama an intellectually, antiseptic atmosphere on election day.

This is not true.

This is a monstrous assumption, if you will, in a free society.

This is the danger of the Mills case.

The gradual, by slow degrees, encroachment on First Amendment rights by the states or by the Congress, it should not be tolerated except in very clear cases.

And then as this Court has pointed out in the Roth case, the door should be left ajar only for the purpose of restricting what have to be restricted in the public interest, and then the door should be tightly closed because the matter of free expression is not just free expression, it is the essence as this Court has recognized, it is the essence of self-government.

And we ask that the Court take jurisdiction and then it reversed the Alabama Supreme Court, my colleague, Mr. Perrine will argue the vagueness objection to the statute.

Thank you.

Chief Justice Earl Warren: Mr. Perrine.

Argument of Kenneth Perrine

Mr. Kenneth Perrine: May it please the Court, I will take that up in rebuttal and use it all at one time, if you please.

Chief Justice Earl Warren: Don't you think we ought to -- well, if you are raising the question of vagueness that you should raise it in some sense either even to --

Mr. Kenneth Perrine: Alright, yes sir, I would be glad to.

Chief Justice Earl Warren: You don't need to use all your time but we would like to know --

Mr. Kenneth Perrine: I would like to save some for rebuttal because mine is all mixed up in that situation.

This statute, Section 285 provides that for anyone, anywhere in the State of Alabama to communicate with anyone on any election day, and it could be interpreted as being solicitation for electioneering.

Now, we have no quarrel whatsoever with a -- the Corrupt Practices Act as such which is directed to particular and specific conduct, but where it goes out into the field as so vague as to what might be any solicitation or any electioneering on election day, then we go into a field whereby an intelligent person might well ask but what do they mean.

What conduct is subscribed in this particular situation.

Now, what is it that I might do or I might not do that would be consistent with electioneering and solicitation?

Now, while we recognize mostly that solicitation and electioneering is understood by the average layman, yet we find that there are many faces of endeavor in which we could wonder whether or not we are absolutely in that particular category.

If you wish to take literally this field of solicitation as it is here, it would mean simply this.

That upon election day, that a person could not even speak to his wife and ask her to go down to the polls and vote for his friend because that would be solicitation or electioneering.

Justice Byron R. White: Or vice versa?

Mr. Kenneth Perrine: Or vice versa.

Usually, it's vice versa.

A Chamber of Commerce, I believe, has been mentioned.

A Chamber of Commerce who has been sponsoring a bond movement to be voted on, on a particular day, and also, as any Chamber of Commerce has done has gone into an active campaign for getting out the vote.

And yet if on election day, they proceeded with this campaign of getting out the vote, it could be interpreted as it was in this statute -- in this case by the Supreme Court of Alabama.

It could be interpreted that the members of the Chamber of Commerce were guilty of electioneering.

Because it could be said and truthfully so, that their interest, one of their interest not only in getting out to vote as the civic proposition but their interest in getting out the vote was to pass the bond issue in which they were interested in.

Then we have --

Justice William J. Brennan: I gather that these two rely to this argument, doesn't it, pretty much under First Amendment aspect of electioneering and soliciting and if you have some business coverage in which you said were dealing with First Amendment finding.

Mr. Kenneth Perrine: Yes sir.

Justice William J. Brennan: And the doctrine of vagueness particularly requires passage of the publicity.

Is that what this argument is?

Mr. Kenneth Perrine: That sir, yes sir.

That's exactly what it is.

Justice William J. Brennan: -- electioneering and solicitation doesn't provide that kind of --

Mr. Kenneth Perrine: There is no definitive wording here that we might know what solicitation would be.

For example, it is common practice in all campaigns to use billboards for the candidate to express his platform and what have you, alright.

They say no election -- there shall be any electioneering on election day but what is the situation with the -- this billboard still being up on election day where you can read it going to the poll, is that not electioneering?

And under this statute which says there can be any no electioneering, no solicitation on election day, that would be a violation of this Act and subject the candidate or whoever put up that billboard to a criminal penalty.

In the same terminology in all kinds of campaigns, there have been certain types of literature that has been put out by the candidates.

And if this is in evidence on election day, under this statute, then too it could be determined to be electioneering or solicitation.

There is no limitation here --

Justice Abe Fortas: But, there is no doubt about this particular incident, is there?

Mr. Kenneth Perrine: Sir?

Justice Abe Fortas: I say there is no doubt that this particular editorial was a solicitation of votes, you probably just said that.

And do you agree with that?

Mr. Kenneth Perrine: Well, yes and no.

Justice Abe Fortas: You've used that by saying --

Mr. Kenneth Perrine: Your Honor, I agree with it to this extent, the Supreme Court has said that the article constituted solicitation.

Justice Abe Fortas: Well, the last paragraph of the editorial says, “Birmingham and the people of Birmingham deserve a better break.

A vote for mayor-council government will give it to them.”

Mr. Kenneth Perrine: Yes sir.

Justice Abe Fortas: That's what it says.

Mr. Kenneth Perrine: Yes sir.

Justice Abe Fortas: And do you -- that does seem sort of like a solicitation of votes, doesn't it?

Mr. Kenneth Perrine: That's exactly true.

It does seem sort of like it.

But then there isn't any definite conduct prescribed in the statute which says that that is a solicitation.

Justice Abe Fortas: Well, you said vote for the mayor-council government (Voice Overlap)

Mr. Kenneth Perrine: Yes, he said vote -- he said vote for it (Voice Overlap) --

Justice Abe Fortas: -- you phrase it.

Mr. Kenneth Perrine: And what did he --

Justice Abe Fortas: Now, tell us how you phrase it.

Mr. Kenneth Perrine: What did he do in this particular case, if Your Honor please, was that he first stated the facts which were news items and appeared in the news items in other parts of the paper.

And then he gave his comment upon that particular news item.

There was no question that the mayor had attempted to bribe the people on votes.

There's no question that the mayor had attempted to put a blackout on the city hall of news.

And he merely said his comment in an editorial that that is another good reason to vote for the city -- change in the city form of government.

Justice Potter Stewart: I should think Mr. Perrine.

I thought that your case was that surely, yes, this is the solicitation for a vote.

Mr. Kenneth Perrine: I think --

Justice Potter Stewart: And that's precisely what the State cannot prevent under the Constitution.

Mr. Kenneth Perrine: I think it was a solicitation of votes, yes sir.

I don't think there's any doubt about it.

But I might call the attention here.

I believe it has been mentioned before in this particular statement in this regard that -- pamphlets that could be issued by the Chamber of Commerce obtaining the same comment.

But here is the solicitation by a newspaper which is only published and obtained by paid subscribers.

It's not some pamphlet that's handed down up on the street corners as you pass by or as you approach the polls and does not come in that category.So there is some question as to whether or not it is vague in that regard.

Justice William J. Brennan: Well, may I ask --

Mr. Kenneth Perrine: Yes sir.

Justice William J. Brennan: Mr. Perrine --

Mr. Kenneth Perrine: Perrine.

Justice William J. Brennan: Perrine.

Thank you, Mr. Perrine.

We've also -- assuming that this is a solicitation, accepting that(Inaudible) in the First Amendment area that nevertheless had a standing (Inaudible) if in other respects, it's the other people have said it.

Mr. Kenneth Perrine: Yes sir.

As I've --

Justice William J. Brennan: And you have to rely only on that assuming it's a solicitation in and of itself as First Amendment proscribed the statement here.

Mr. Kenneth Perrine: In and of itself which says that we must have freedom of speech.

The very foundation of our government is the freedom of speech and particularly in the political.

Justice William J. Brennan: Irrespective of that -- under the vagueness argument, you are standing to argue that is it's too vague as applied to other people.

Mr. Kenneth Perrine: Yes sir.

Justice William J. Brennan: The billboards and all of those.

Mr. Kenneth Perrine: Yes sir, not only -- not only to the billboards, it applies as vague as to individuals, as to the press, as to the radio, as to the TV, or in fact any type of communications under this section.

And I believe that that was adequately expressed by this Court originally in the Thornhill against the State of Alabama case in which this general principle was involved, that you could not subscribe to and curtail the freedom of speech unless it is specific or directed to certain conduct.

And this is no conduct directed here.

There's no particular act involved.

Yes, he wrote an editorial which could be read by the people if they so desire.

It was no button holding.

There was no --

Justice Hugo L. Black: They didn't object to the conduct, did they?

They objected to what he said.

Mr. Kenneth Perrine: They objected the fact that he --

Justice Hugo L. Black: That's what you're trying to defend here.

Mr. Kenneth Perrine: That's right.

Justice Hugo L. Black: He said.

Mr. Kenneth Perrine: What he said, his speech.

This broad no solicitation rule, I believe, was asked as far as not in the federal Corrupt Practices Act.

It's not in 46 states.

I believe there are only four states that have a similar broad rule as we have here, Alabama being one of them.

And none of those states has yet passed upon the constitutionality of this particular act as it had been brought before us.

We do not think that it can be presumed that the people will know in their own minds what is solicitation and electioneering.

Now, if you have specific conduct directed as it has been many times in many statutes within 100 feet of the poll, that you will not have the passing out of pamphlets, you will not have the button holding of people who would be obstructed in their line of march to the polling place, that you will not have loud sound trucks, all of those things are specific conduct which can be defined.

Yes, they are all electioneering and they're all solicitation but where you put any solicitation or any electioneering without any specific conduct being prescribed in that particular area, then you will think that there can be no communication.

Now, if you read this statute in its entirety as to what it says, this Section 285.

Now, we're not attacking the Corrupt Practices Act of the State of Alabama as a whole, but only this one particular section.

And what this one particular section says, that on any election day, anywhere in the State of Alabama, it doesn't matter if it's a municipal election, a county election, a state election or a federal election, just so an election is being held, that anyone in the State of Alabama whether it's an individual, whether it's an editor of a newspaper, whether it's a radio or television who solicits any vote or does any electioneering on that date, and as expressed that the State -- if the election as being held in Birmingham but the statement is made in Mobil, it's still a violation of this Act because there's no conduct prescribed, and there's no time element involved.

There's no place involved in this particular thing.

It was not delimited in any direction.

And we state that from the standpoint of being vague and indefinite, that this statute does not meet the requirements that have been handed down by this Court particularly when those requirements are infringing upon the First Amendment rights.

Justice John M. Harlan: Had there been any construction of this statute by any of your courts before this case?

Mr. Kenneth Perrine: No sir, there has been no construction of this section.

There have been many constructions of the Corrupt Practices Act --

Justice John M. Harlan: On that construction?

Mr. Kenneth Perrine: -- but nowhere in the -- nowhere have we found any construction of a broad, no solicitation, no electioneering rule on election day.

And as I've stated, there are only four states that have such election.

All the other states confined it to within so many feet of the polling place --

Justice Abe Fortas: Are there municipal ordinance --

Mr. Kenneth Perrine: -- and to specific acts?

Justice Abe Fortas: -- to this effect?

Are there municipal ordinance as to the same effect?

Mr. Kenneth Perrine: No sir.

Justice Abe Fortas: Nowhere.

Mr. Kenneth Perrine: Nowhere.

Well, maybe in some places.

I do not know but I am not familiar of any ordinance which had been upheld by any court which would put a blanket expression upon the freedom of speech.

Justice Potter Stewart: Just on the parts -- the parts of Section 285 probably clear enough, aren't they?

Mr. Kenneth Perrine: If you start -- if you start off, if Your Honor please --

Justice Byron R. White: Obstruct or hinder or attempt to obstruct -- obstruct or hinder or prevent or attempt to prevent the forming of the line of the voters who are waiting for their opportunity or time to enter the election booth, that's fairly --

Mr. Kenneth Perrine: I think that part of it is there and if they stop there, it would be fine but if you go on, I'll show the -- how inaccurate this section are loosely drawn and then it goes on to prescribe that any person who hires a vehicle to take into the polls, or any person who hires out a vehicle is guilty of a violation on this Act.

And which should mean that if a voter did not have an opportunity to go to the polls, he couldn't hire a taxicab because if he did, that's hiring a vehicle to go to the polls, and he would be guilty of a violation of this Act.

Justice William J. Brennan: That's a specific argument.

Mr. Kenneth Perrine: That's the specific --

Justice William J. Brennan: Though -- your vagueness argument, as I understood, goes on to (Inaudible) any electioneering or the soliciting of votes.

Mr. Kenneth Perrine: Yes sir, but I was illustrating how this particular section was so loosely drawn as to be unconstitutionally vague in that regard because I'm sure that they didn't intend to say that a taxicab should be guilty of a crime by merely hired it, taking a passenger to the polls.

And yet, that's what this statute says.

And therefore, in that standpoint, it would be unconstitutional restrictions of rights there.

Justice Abe Fortas: Suppose the labor union had a meeting on election day, got its members together and the labor union officials who rang them and pull them out to vote.

And they were then -- go into the polls, would you consider that the statute is unconstitutional as applied to that sort of situation?

Mr. Kenneth Perrine: Yes sir, I do because I think that that would be an invasion of their freedom of speech and their right of expression.

And in that connection, I might call your attention to the National Labor Relations Board in the holding of their elections.

And they have held their elections in the atmosphere of the clinical laboratory.

And yet in the National Labor Relations Board, they say that you can talk to your people as long as it's not within 100 feet of the polling place.

They also confined it to the times when the polls are open.

Here, you got a 24-hour period involved.

The polls open from 7:00 to 7:00 and yet a blanket of silence is placed upon all of the electorate of the State of Alabama for the entire day, not for just the time the polls were opened.

The National Labor Relations Board elections is only the time that the polls to vote -- or open, that the requirement is that you cannot electioneer or you cannot solicit the employee within 100 feet of the polls.

Now certainly, with all of the care that they have used in the NLRB in holding their elections, to say that the people of the United States cannot use their own intelligence and talk to people any time, any place in the State of Alabama for the day is such a vague proposition that it would run right into the teeth of the constitutionality and this Act should be declared unconstitutional.

Does that answer that portion of the question regard to the -- as I have previously stated, there's nothing here in regard to the geographical area.

Everywhere in the State of Alabama is restricted.

That is the vagueness of this particular statute.

And it's difficult to talk about the vagueness of the statute without going into the First Amendment rights because they're all mixed up together and the same as it is with the jurisdictional rights.

They're all intertwined and I've attempted to bring out at this time the vagueness with saving some time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Kenneth Perrine: Thank you.

Chief Justice Earl Warren: Mr. Hall.

Argument of Leslie Hall

Mr. Leslie Hall: Mr. Chief Justice and members of the Court.

I want to address myself first a little bit to this matter of jurisdiction.

It seems to me in my impression from the argument given by Mr. Swedlaw, was that he was asking this Court to give an advisory opinion.

I don't think this Court has been in the habit of doing things like that and I hope it doesn't start doing it now.

But be that as it may, the Court has reserved decision on the jurisdictional question in this particular case.

Now, I want to go into something with regard to the merits.

Mr. Perrine --

Chief Justice Earl Warren: Is that all you're going to say --

Mr. Leslie Hall: Yes, I'm not going to --

Chief Justice Earl Warren: -- the question of jurisdiction.

Mr. Leslie Hall: -- go too much into that because --

Chief Justice Earl Warren: Yes.

Mr. Leslie Hall: -- actually Mr. Hawkins and I are quite interested in getting the decision as far as the constitutionality.

Justice John M. Harlan: You don't care about jurisdiction.

Mr. Leslie Hall: I wouldn't waste the Court's time too much on that.

Chief Justice Earl Warren: I think -- yes, very fair to do that.

Mr. Leslie Hall: Yes.

Chief Justice Earl Warren: Proceed.

Mr. Leslie Hall: Now, as far as this particular editorial is concerned, it didn't fall in the category of news.

There's a distinction between news and a distinction between editorializing and solicitation of votes on election day.

Something was read here with regard to the last paragraph in that particular editorial in which it said, Birmingham and the people of Birmingham deserve a better break, a vote for mayor-council government will give it to them.

But we should backup a little bit and go back to the preceding paragraph.

And the preceding paragraph has only one sentence.

Let's take no chances.

That was the thing that I believe Mr. Justice Stewart was referring to a little while ago as to what actually that editorial meant.

It meant to the people to come out on that particular day and vote for that particular proposition.

And I admit that and not against.

Justice Hugo L. Black: Whether they're violating the law to have just said the people to come out and vote.

Mr. Leslie Hall: No sir, I don't think it would have, Mr. Justice Black.

Justice Hugo L. Black: Well, the only part they objected to is decide its own (Inaudible)

Mr. Leslie Hall: They -- the part of the objection to is the effect that they solicited votes for a particular proposition.

And that's what the statute forbids.

Justice Hugo L. Black: And an editor can write that on election day?

Mr. Leslie Hall: That would be --

Justice Hugo L. Black: Is that your issue?

Mr. Leslie Hall: Sir?

Justice Hugo L. Black: That an editor cannot say on election day in an editorial in the papers in the public (Inaudible) perhaps illegally published, and expresses views on how people should vote.

Mr. Leslie Hall: Well, he can express -- he can write views on that day.

Justice Hugo L. Black: He can write -- suppose he writes -- expresses his views, but I hope that you're going to vote certain ways today, that would violate the law there, I suppose.

Mr. Leslie Hall: I believe it would.

I believe it would, yes.

Justice Hugo L. Black: That would violate that law.

Mr. Leslie Hall: Yes.

Justice Byron R. White: And he's violated the law that even if he didn't say “please vote for John” it would also violated that his last paragraph says John into that man.

Mr. Leslie Hall: I believe it would, sir.

Yes.

Justice Byron R. White: Or that this idea -- the city -- he just wrote this editorial that said generally, the city-council type of government is a poor form of government.

Mr. Leslie Hall: Well actually, Mr. Hawkins can give you a little bit of background on this particular thing because he lives there in Birmingham but --

Justice Byron R. White: Is that the issue -- if the issue was not the city-council type of government and you're writing editorial that says, “City-council type of government has failed all over the United States”, then you have electioneering then?

Mr. Leslie Hall: When he get a little bit of that with Mr. Hanes --

Justice Byron R. White: Well, what do you think about that?

Mr. Leslie Hall: Yes sir.

Well, I don't know.

If you write a general proposition, probably it would be alright but if you --

Justice William J. Brennan: Well, how about the suggestion that he was trying to make, a mobile type of a billboard, or billboard.

Mr. Leslie Hall: Well now, billboard is a different proposition there.

Justice William J. Brennan: Well, I can expose all the billboard that says, vote to change to change to whatever it is, you need the exact -- the last sentence of this editorial, is that somewhere within the --

Mr. Leslie Hall: The billboards have been up there all the time and they went up on election day.

Justice William J. Brennan: But it's still there on election day.

Mr. Leslie Hall: Yes sir.

Justice William J. Brennan: Would that come within a violation of the statute?

Mr. Leslie Hall: I don't believe so.

What do you mean?

We are supposed to have everybody take them down on election day?

Justice Byron R. White: It's what the law said.

Justice William J. Brennan: Isn't that -- it certainly said, to do any electioneering or to solicit any votes and my hypothesis is a billboard which says vote for or vote against whatever its proposition was, that's all it says.

Wouldn't that mean solicitation or electioneering on election day?

Justice Byron R. White: If it isn't, why people are spending a lot of money for --

Mr. Leslie Hall: I agree with you.

I lived over here in Virginia for 19 years and these just stand out there on the sidewalks and handout the cards.

I guess they still do it.

Justice William J. Brennan: suppose this newspaper on election day had an editorial and a paper version, a whole paper -- a paper version of -- just like the voting which says, “Vote against and vote for this form of government,” would that have been a violation of the statute?

Mr. Leslie Hall: No.

The main thing that we've rather add here is that --

Justice William J. Brennan: I know but this goes certainly as Mr. Perrine's argument of vagueness, does it not?

Would it be reached by the findings?

Mr. Leslie Hall: Well, I think if there's any question about the definiteness of the --

Justice William J. Brennan: That it actually gets would have reached the verdict and I take that the business manager of the newspaper and the sponsors of the advertisements should all be prosecuted and criminally convicted under your statute.

Mr. Leslie Hall: Well, no.

The only one who is responsible is the one who composed the editorial.

Justice William J. Brennan: Only?

Justice Byron R. White: Well, there could be more than one.

Mr. Leslie Hall: Sir?

It couldn't be one.

However --

Justice Hugo L. Black: It might have a ghost writer.

Mr. Leslie Hall: Sir?

Justice Hugo L. Black: It might have a ghost writer?

Mr. Leslie Hall: That may be true.

Justice Hugo L. Black: He had -- it could be more than one.

He have the newspaper and also the (Inaudible)

Mr. Leslie Hall: Yes.

Justice Abe Fortas: Do you know whether anybody else of this record or anybody else having been prosecuted under this particular (Voice Overlap)?

Mr. Leslie Hall: I think no sir.

I don't know of any, Mr. Justice Fortas.

This is the only case we know about in my experience.

Justice Byron R. White: You mean newspaper case or just any case under the statute?

Mr. Leslie Hall: The only newspaper case that I only think of.

Justice Byron R. White: But there have been others on --

Mr. Leslie Hall: Well, not in recent years.

We have never had one go up to the Supreme Court of Alabama until this case came up.

Mr. Hawkins will resume after lunch.

Chief Justice Earl Warren: Yes, yes.

Mr. Leslie Hall: To carryout a bit.

Chief Justice Earl Warren: But we'll -- we'll recess now, we're so close to adjournment.

Argument of Burgin Hawkins

Mr. Burgin Hawkins: -- prior to that time, many acts of corrupt practice at the polls, intimidation of voters getting them drunk, buying votes, there are many types of corruption.

Of course, those -- all those laws were passed to give the elector a right to go to the polls unmolested, undisturbed, and vote his choice.

Now, the question here is whether or not this statute prohibiting all electioneering and solicitation on an election day transcends the right of a legislature to put certain reasonable restraints on the Constitution, the First Amendment of the Constitution of the United States.

So we get right down to the mead of it, to ask ourselves, is it a reasonable regulation?

And I think the second question then is, what do you mean by electioneering?

What do you mean by solicitation?

How broad?

Does it give or does it take the breath away from a First Amendment or can the First Amendment still breathe easy with that statute on the books?

I think every statute has to be governed by what the intent and what evil was sought to be cured.

The evil sought to be cured here was to prevent corruption at an election.

Congress has just recently given to literate thousands in our state a franchise to exercise their right to vote.

And many of them, illiterates, will have many difficulties confronting them when they reach the polls.

And I think that this Court should give serious consideration to any acts of a legislature that will carry out the purposes and intent and a motive behind that act.

Now, theirs is no reason -- or no place here for idle talk about a man at a breakfast table asking his wife won't she vote for a certain candidate?

To me that's in a -- on a golf course, in a tennis match, that's idle conversation.

What we are talking about is something that is done, enacted as done with the intent to swear on election or to decide on election.

I even put up your billboards, talk about your billboards, they're ought to be taken down, maybe in some sense that is electioneering.

Maybe in some sense that billboard does solicit your vote.

Justice Byron R. White: What about the --

Mr. Burgin Hawkins: But I am sure --

Justice Byron R. White: Could I ask you?

What about just urging people to vote?

Mr. Burgin Hawkins: Urging people to vote?

I think if you urge the person to vote, it would be absolutely alright.

It's urging them to vote for particular candidate or issue.

Justice Byron R. White: That is electioneering in one of its most traditional sense.

Mr. Burgin Hawkins: I don't think it was that -- I don't --

Justice Byron R. White: It was urging -- getting out to vote -- just urging people to vote.

Mr. Burgin Hawkins: Justice White, I don't believe that that was the original intent of this legislature --

Justice Byron R. White: Well, you can tell it from the word.

Mr. Burgin Hawkins: -- but to prohibit people from getting numbers of people out to the polls.

In our county and in our state, the city organizations put plaques across the streets, “Go to the poll, this is election day.

Exercise your constitutional right”.

I don't think that that is electioneering as it was meant when it was adopted in 1915 in the State of Alabama.

Justice Byron R. White: Well, I would think almost anybody would think that was electioneering.

It may be not what the legislature had in mind but --

Mr. Burgin Hawkins: I don't think that's what the statute intended to prohibit.

Chief Justice Earl Warren: (Inaudible) to prohibit it.

Mr. Burgin Hawkins: Taking those very people --

Chief Justice Earl Warren: (Inaudible)

Mr. Burgin Hawkins: If that was a case before Your Honor, I would confess, I wouldn't argue such a ridiculous thing that a man cannot get him a taxicab and go to the polls to vote although I think it's just ridiculous to argue that.

And to that, I don't think that that's -- I don't think that's what the statute means.

Now, I think that if you furnish for the purpose and motive of getting those people that you picked up and carry to the polls to vote your particular sentiments or to vote your particular issue or to vote for your particular candidate I think is electioneering.

Not just to furnish somebody or transportation to the polls, you might be on your way to the polls and pick up a passerby and carry him to the polls.

Unknown Speaker: (Inaudible)

Mr. Burgin Hawkins: Well, it's a question you get down to what is the meaning of the word solicitation and electioneering.

How broad in scope is it?

Is it -- does it have such a meaning that a man of common intellect and common knowledge understands this meaning or is it a meaning that that is not understood.

Justice William J. Brennan: Mr. Hawkins, apparently, those two words are used in different sentence though is it not, if you do any electioneering or to solicit any votes.

Now, what you've been talking about and what your response to Mr. Justice White, it seems to me before went in to solicit the electioneering obviously, will tend to be voter management.

At least (Voice Overlap) --

Mr. Burgin Hawkins: It certainly could be.

It could be broader than the word or confine the word solicitation (Voice Overlap)

Justice William J. Brennan: Well might it not -- might it not be broad enough to reach what Mr. Justice White suggests, just a plea, get out and vote without saying vote for whom.

Mr. Burgin Hawkins: Well, it says to for any candidate or any issue --

Justice William J. Brennan: Well, but that's my point it seems -- the way that it's exactly driven.

It seems to distinguish between electioneering, on the one hand, and soliciting votes or promising to cast any vote or against the election or nomination of any candidate or in support of or in opposition of any proposition.

Electioneering seems to be something distinct from any of those other things.

Mr. Burgin Hawkins: Well, it could be so.

Justice William J. Brennan: At least your (Voice Overlap) --

Mr. Burgin Hawkins: It could be so interpreted --

Justice William J. Brennan: Your Supreme Court has not told us.

Mr. Burgin Hawkins: What?

Justice William J. Brennan: Your Supreme Court has not suggested that it means anything such that you're asking us to -- reading from it, has it?

Mr. Burgin Hawkins: No sir.

No sir.

Now, if the statute has a field of operation and it's not too broad, I think it plays the most important part in having an orderly election.

You say that the statutes, I think the courts have so held that the prohibiting of a solicitation of a vote within a certain distance from the poll is a valid exercise of the police power of the State.

It seems to me that more damage could be done in a printed word through a mass media, and then would be by having a statute that's limited to the prohibiting and solicitation of votes within 100 feet of the poll.

I think that all of these -- all of these statutes has to be looked at with common sense.

All lies go hand in hand with common sense.

And I don't think it was ever intended that a person would be prosecuted if that abridged party, one lady said to another one, “I wish you'd vote for a certain candidate or vote on a certain issue.”

Its sole purpose is to have orderliness, peace and quiet.

Let the editor of that paper for 364 days out of the year, expound any cause he desires.

We're not arguing that he doesn't have the right to advocate any issue or to support any candidate.

But we do think that the statute is not asking too much to say that on one day, out of the year, don't publish an editorial soliciting votes for a particular candidate or on a particular issue.

Chief Justice Earl Warren: Mr. Hawkins, may I ask you (Voice Overlap).

Mr. Hawkins, may I ask you this.

Suppose one side in an election launches a scurrilous attack upon the other side about an hour before midnight, the night before election, is it reasonable, is it fair to prevent free speech in order to oppose that next day?

Mr. Burgin Hawkins: Mr. Chief Justice, I would defend that man's right on election day to defend his character and his good name

And I think the First Amendment gives him that right even in the face of what the statute may say.

Chief Justice Earl Warren: Alright, let's take another one.

Now, suppose the man, one man who's running for office admits in some other context an hour before the election that he's been guilty of bribery.

Do you think that the opposition would have no right to expose that to the public the next day?

Mr. Burgin Hawkins: I think that it would but I have given a lot of thought to that.

I'll say this that I certainly think that a newspaper can write a news item and state the facts, if it is a fact.

Now I'm -- we're not arguing (Voice Overlap) the fact of newspaper or publishing news (Voice Overlap).

Chief Justice Earl Warren: Would it not have the right to say in addition to that that it is a view of this newspaper that a man who has just admitted his guilt of bribery should not be reelected to this office?

Mr. Burgin Hawkins: Mr. Chief Justice, there's so many things brought there.

How do you know the man made an admission on the certain conditions?

How do you know that the report is -- that the opposition got a correct reporter.

But if it were a fact --

Chief Justice Earl Warren: Yes, I say if it were a fact.

Mr. Burgin Hawkins: I don't know.

I confess to you that I don't know on that question what my opinion would be.

Chief Justice Earl Warren: It does bring --

Mr. Burgin Hawkins: It's such a (Voice Overlap) --

Chief Justice Earl Warren: -- a hard question.

Mr. Burgin Hawkins: Yes, it brings up a serious question.

I think that people have the right to know of course whether the candidate is corrupt, whether he's violated the laws that would necessarily disqualify him for office, yet on the other hand, I don't know rather it should be done on a particular election day or not, because if you say well, that can be done then why can't this be done

And if this can be done, why can't that be done.

Chief Justice Earl Warren: That's what I had in mind.

Mr. Burgin Hawkins: Well, I don't know what the end of that would be.

If you take all of the decisions of the First Amendment and state all of them, I think you get back about where you started for in the first place.

Justice William O. Douglas: Of course, he could say after in the news, thereafter he says that despite this fellow admitted bribery so that I'm going to vote against it.

Mr. Burgin Hawkins: Justice Douglas --

Justice William O. Douglas: He could say that he's going to vote against him, could he not, under your statute?

Mr. Burgin Hawkins: I think it would be fair to comment when in fact that one person is going to vote against somebody, it wouldn't necessarily be (Voice Overlap) all others while they're there.

Justice William O. Douglas: He'd just be announcing what he's going to do.

I'm going to vote against him.

Mr. Burgin Hawkins: I think that probably that would be a fair comment that he's going to vote against him.

Justice Byron R. White: Well, what competing state of interest really is involved here, Mr. Hawkins?

What does the statute attempting to attain or to protect somebody against?

What is the evil of saying that here?

Mr. Burgin Hawkins: Justice White, I think if you recall in the days of the old west in other sections of our country where elections were bought.

People go into the polls were intimidated.

They were frightened.

They were fearful to even go there to exercise their right to vote.

And I think it was to give a feeling of security and to prevent some undue influence on election day.

If I would tend that voter, he maybe even vote contrary to his own best interest, I don't see why if a newspaper or any other person or association or anybody else has every day in a year to express their opinion, why is such imposition on any individual to say, well now this day is going to be set aside for an election day, let's all keep quiet and let the newspaper keep its mouth shut and let everybody else keep quiet on that day.

Justice Byron R. White: The other side of the coin is why should they keep quiet?

And then you've got to be, if you certainly, at the very minimum, you have to be able to demonstrate --

Mr. Burgin Hawkins: Well I think that -- I think --

Justice Byron R. White: -- that the State is being served --

Mr. Burgin Hawkins: Well I think it causes -- like that it cause disorder, riots, violence, (Voice Overlap).

Justice Hugo L. Black: Not the editorial.

Mr. Burgin Hawkins: Sir?

Justice Hugo L. Black: Not the editorial, we're talking now about the editorial.

Mr. Burgin Hawkins: The editorial?

Justice Hugo L. Black: You're talking about the riot and disordered polls.

Mr. Burgin Hawkins: Well, an editorial written work can start a war just as well as --

Justice Hugo L. Black: What?

Mr. Burgin Hawkins: -- two people in a fight.

Justice Hugo L. Black: Yes, but I thought you were talking about the disordered polls, that's quite a different thing.

It sounds to me like what your statute really want after.

Mr. Burgin Hawkins: That is to prevent disorder at the polls.

Justice Hugo L. Black: At the polls?

Mr. Burgin Hawkins: Yes sir.

Yes sir.

And I think that you can create a disorder at the polls by allowing a newspaper to create certain editorial on certain subjects, just the same as if they went to polls, holding someone and trying to convince them in.

So I think that's --

Justice Hugo L. Black: They wouldn't do that at the polls.

Mr. Burgin Hawkins: Sir?

Justice Hugo L. Black: They wouldn't be there at the polls.

Mr. Burgin Hawkins: Well, of course sir.

Justice Hugo L. Black: He'd be back at the editorial office.

Mr. Burgin Hawkins: Oh yes, he'd be back up then.

Now, there are some questions here about -- on jurisdiction.

I think Your Honor that this Court should render an authoritative decision on this question.

It's of vital importance to the people of Alabama.

And if we went back through the courts, I can tell you what I think would happen in the face of the Supreme Court's decision although there is a trial de novo, I think if an evidence was, as presented to you here, the Court would give a request in favor of the State under a general charge, that if they believe that they would have to convict Mr. Mills.

So now in this type of a statute, in any complaint or sworn affidavit or indictment, the facts alleging a solicitation or the electioneering would necessarily have to be in that complaint or sworn affidavit.

And I think if any person, prosecuting attorney or anyone else attempted to use the statute in a -- and under the facts that wouldn't constitute solicitation or demurrer filed to the indictment, a demurrer filed to the complaint raising a question that it does not constitute a violation of the law under the State of Alabama, the courts would have a review of the conduct of the individual to determine whether or not the Court in its opinion thought that this alleged, where it might be who was accused of violating it, did electioneer or solicit votes for an individual or candidate on election day.

I thank you.

Justice Hugo L. Black: May I ask you another question, Mr. Hawkins?

As I recall Alabama, it does not have a provision in the Constitution which makes the jury the judge who brought the law in facts and criminal libel cases, does it?

Mr. Burgin Hawkins: In criminal libel, Justice Black, I've never had a criminal libel case --

Justice Hugo L. Black: Now, this has many arguments.

This has not named that but it's a kind of thing, it was a criminal libel in the old days.

Mr. Burgin Hawkins: I just don't --

Justice Hugo L. Black: I'm just wondering.

I didn't think that that provision is in the Constitution at this time of Alabama.

Mr. Burgin Hawkins: I do think of one thing that these statutes being penal in nature are certainly be strictly construed.

And with that, I appreciate the opportunity for speaking to you.

Thank you.

Chief Justice Earl Warren: Thank you, Mr. Hawkins.

Mr. Swedlaw.

Rebuttal of Alfred Swedlaw

Mr. Alfred Swedlaw: Mr. Chief Justice, may it please the Court.

In rebuttal, Mr. Hawkins has stated that in his judgment, various acts which the statute by its terms proscribed would not be so construed and would not be -- this is not the intendment of the statute.

The language of the statute is clear in these various respects and this, this is one of the faults, the vagueness fault in the statute that it brings within its ambit and within its purview otherwise harmless conduct and proscribes it and makes it a criminal offense.

The statute does not require that it'd be done with a criminal intent.

The statute says thus and so shall be forbidden on election day.

Now, one of the concerns of the State apparently and Mr. Hawkins has expressed here and I think that this paternalistic attitude is permeated in the State's position throughout these proceedings.

Questionably, the right of the public to be protected, Mr. Hawkins said that he thought that one of the purposes would be to prevent a voter from forming a role and opinion.

Now, this is precisely -- this is precisely the thought -- that sort of thing that we are urging on the Court here to take cognizance of the fact that this is not a legislative interest that the State has a right to protect, Thornhill decided that.

Thornhill decided that -- the fact that people might be persuaded to take the position contrary to their best interest or to adopt an indirect opinion are not dangers which government has any right to prevent.

The antiseptic atmosphere of an election is not something that is a matter of legislative interest -- legitimate legislative interest.

There's nothing it says we need to have peaceful, and calm, and tranquil atmospheres on election day.

We must defend out -- like to speak out robustly as the State has said, even to the point -- as this Court has said, even to the point of criminal libel unless done with malice as this Court held in the Garrison case with regard to public officials.

If the Court will permit with the remaining time we have at hand, we should like to revert to the question of jurisdiction notwithstanding that the State is in effect graciously conceded that it makes no issue of the jurisdictional question.

But since a state in its brief has made certain comments and distinctions, for example the State has made much of the -- of an alleged distinction on the finality question between the Pope case, for example, in our case and that this case is a criminal procedure whereas in Pope, criminality was not involved.

We submit that if there is any such distinction, it lies in favor of the appellant in this case for the reason that it's of much more pertinence, much more concerned that this man, that Mr. Mills not be subjected to a criminal trial and risk having a conviction against his record in order to test his constitutional rights.

The distinction is not made in the statute.

Section 1257 requires no distinction such as the State would urge between criminal and civil proceedings.

Now, the State also relies on the Polakow case which was decided by the Supreme Court on a writ of certiorari, not decided, the writ of certiorari was denied.

And in Polakow, there was involved the procedure of indictment against certain persons in Alabama for selling real estate without a license as prescribed by the statute.

The constitutionality of this statute was likewise tested by demurrer and the matter went to the Supreme Court on certiorari but the Supreme Court denied the writ.

Now, the distinction between the Polakow case and the case involved is a fraud that appears in Polakow.

The defendant there had other defenses to interpose in a trial of the case.

That is not true as we have pointed out in the case involved.

Moreover, the Court has moved away from Polakow to the point that it maybe said that Polakow has by being ignored been overruled.

The Pope case, the Richfield case, the Curry case have all departed at least implicitly from the Polakow holding.

And this Court has recognized that the threat of sanctions, the threat of First Amendment restrictions, can even more or can almost as much as the imposition of the sanctions themselves infringe upon constitutional rights.

As late as last month in the Fanny Hill case, for example, this Court in passing on the -- on its jurisdiction in the -- on the Massachusetts proceedings, in which there had been an in rem declaration of obscenity against the Fanny Hill book but there had been no prosecution, there'd been no criminal trial, been no criminal conviction albeit.

But this Court noted that the declaration of obscenity is likely to have a serious inhibitory effect on the distribution of the book.

And that this probable effect is in no small measure derived from the possible collateral uses of the declaration in subsequent prosecution under the Massachusetts statute.

Justice Potter Stewart: Mr. Swedlaw, may I interrupt you just a moment.

Mr. Alfred Swedlaw: Yes.

Justice Potter Stewart: I didn't get the name of the case you were referring to that you say has been undermined.I thought you said Palco --

Mr. Alfred Swedlaw: Polakow, P-O-L-A-K-O-W is the --

Justice Potter Stewart: Is that in your brief?

Mr. Alfred Swedlaw: -- case, yes sir, it's cited in the State's brief and we had -- we have the citation, I think it's 319 U.S.--

Justice Potter Stewart: Polakow?

Mr. Alfred Swedlaw: Yes sir.

Justice Potter Stewart: Thank you.

Mr. Alfred Swedlaw: It's 319 U.S. 1155.

Justice Potter Stewart: Thank you, sir.

Justice Byron R. White: What's that?

Mr. Alfred Swedlaw: 319 U.S. 1155, I think.

Justice Potter Stewart: It's 750 and it say (Voice Overlap) --

Mr. Alfred Swedlaw: 750 to 755.

Justice Potter Stewart: Yes.

Mr. Alfred Swedlaw: The parallel between the Fanny Hill case and the Mills case we think is evident.

Mr. Mills' editorial like Fanny Hill stands condemned by the highest court of the State as being in violation of state law and thus irrespective of what may or may not happen in future proceedings below.

The freedom of expression is now seriously impaired just as this Court felt that it would be in Massachusetts although no criminal prosecutions had actually occurred.

And it might be said in conclusion.

It might be said within the Pope case for example for all that appears of the railroad company might have waived its injunction proceedings which was sanctioned.

And these are possibilities, but the practical effect of this situation, as we have said, is that Mr. Mills has been tried on the merits by the Alabama Supreme Court.

And we feel that under the circumstances, the matter is right for adjudication and nothing is left to be decided, and we urge the Court to take jurisdiction and reverse.

Thank you.

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